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$60,000 Non-Pecuniary Assessment For Chronic Back Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for lingering injuries caused by two vehicle collisions.
In the recent case (Ali v. Rai) the Plaintiff was involved in two collisions in 2011.  He was found faultless for both.  The collisions caused a lingering back injury which remained symptomatic at the tie of trial and the symptoms were expected.  The Court found both collisions caused the injury and it was indivisible.  In assessing non-pecuniary damages at $60,000 Madam Justice Duncan provided the following reasons:

[134]     On the whole of the evidence, I find the plaintiff suffered back and neck injuries as a result of the two accidents at issue before me along with headaches and sleep issues. I cannot find the injuries divisible as between the two accidents. The plaintiff was not fully recovered from his injuries after the First Accident when the Second Accident occurred. This is reflected in Dr. O’Connor’s opinion that the First Accident aggravated the plaintiff’s underlying condition, he was improving by the time of the Second Accident, and that accident did not cause additional injuries, simply a re-aggravation.

[135]     I find the plaintiff’s neck pain had substantially cleared up by the summer of 2011. The aggravation in 2012 which caused the pain to manifest in the right side instead of the left is unexplained and I cannot find it was as a result of the accidents. The plaintiff continues to suffer from back pain to this day. I find it limits his work and recreational activities. I will have more to say about it under the individual heads of damages…

[137]     The plaintiff is now 50 years of age. He has a chronic back injury and suffered from a neck injury for some months after the accidents in addition to headaches and disturbed sleep. The back injury continues to affects his social life. He does not do as much volunteer work as he once did. He has to sit in a chair to pray rather than join his contemporaries and use prayer mats. He cannot sit through a movie or drive long distances. He cannot referee soccer at the high level he once did and he no longer plays recreational soccer due to the impact of the accidents. His back injury has affected his mood and his wife feels it has affected their social and intimate life. The plaintiff does not contribute to work within the home as he once did, nor does he feel able to perform yard work or work that arises from the tenanted basement. Overall, the plaintiff’s back injury has permanently altered all aspects of his life…

[140]     As noted above, while I found the plaintiff’s neck condition had improved by the summer of 2011 and there was no evidence as to why it was aggravated in 2012 and transferred to the opposite side, his back injury continues to affect him. He was a formerly active, engaged and giving member of the community whose quality of life and self worth has been affected by his injury. Balancing all of the factors, I find a fair and reasonable award for non-pecuniary damages is $60,000.

BC Court of Appeal – Vicarious Liability Under the Privacy Act is an Open Question

Written by admin on . Posted in ICBC Privacy Issues.

Today the BC Court of Appeal released reasons for judgement finding it is an open ended question whether BC’s Privacy Act allows an employer to be vicariously liable when an employee willfully violates the privacy of another.
In today’s case, (Ari v. ICBC) a proposed class action, the Plaintiff sued ICBC alleging various improprieties arising from an employee improperly accessing “the personal information of about 65 ICBC customers“.
A chambers judge dismissed all of the claims except one under BC’s Privacy Act which makes it a tort  “for a person, wilfully and without a claim of right, to violate the privacy of another.“.
ICBC argued this section does not permit them to be sued for an employees wrongdoing.  The BC Court of Appeal disagreed and found it is an open ended question of whether vicarious liability can be attached to this statutory tort and that the issue needs to be addressed through the trial process.  In allowing this claim to survive the pleadings motion the BC Court of Appeal provided the following reasons:

[25]        It is not clear that s. 1 of the Privacy Act should be interpreted as limited in the same fashion as the relevant provisions in Nelson. Section 1(1) states that “[i]t is a tort, actionable without proof of damage, for a person, wilfully and without a claim of right, to violate the privacy of another”. There is no language (as there was in Nelson) that clearly limits a plaintiff to recovery of damages from the person identified in s. 1(1). While, as the chambers judge observed, vicarious liability for acts of intentional and deliberate wrongdoing has generally been rejected, it is not unheard of (see: Lewis Klar, Tort Law, 5th ed. (Toronto: Carswell, 2012) at 682). To the extent that s. 1(1) of the Privacy Act requires deliberate wrongdoing, it is not per se incompatible with vicarious liability.

[26]        Although Nelson may provide, by analogy, a basis for denying the availability of vicarious liability, I cannot conclude that the chambers judge erred in finding the appellant’s claim is on this basis, not bound to fail.

[27]        Alternatively, ICBC says that there is a policy argument which supports its position that there is no cause of action in vicarious liability. For policy reasons ICBC says, employers should not be held vicariously liable for wilful breaches of privacy under the Privacy Act.

[28]        ICBC also contends that the question before the chambers judge was whether vicarious liability should be imposed due to policy considerations. It says that the appropriate question to ask is: should liability lie against a public body for the wrongful conduct of its employee, in these circumstances? The question necessarily demands some exploration of the evidence about the connection between ICBC’s security procedures and the security lapse that occurred, as well as a weighing of the policy considerations involved. It is reasonable to conclude that a factual matrix is necessary in order to fairly address whether ICBC’s conduct materially enhanced the possibility of committing the breach of privacy, and to determine the connection between the impugned conduct and ICBC’s conduct. In other words, to clearly determine how public policy considerations affect the viability of the vicarious liability claim, some evidence is required.

[29]        ICBC submits in the further alternative that ss. 73 and 79 of the Freedom of Information and Protection of Privacy Act bar recovery for vicarious liability. Section 79 provides that the Act prevails where it conflicts with the provisions of other legislation. Section 73(a) prohibits proceedings against a public body for damages resulting from good faith disclosure or non-disclosure of all or part of a record under the Act.

[30]        As the disclosure alleged was not a good faith disclosure, s. 73 has no application to the circumstances of this case.

[31]        I am of the view that the question of vicarious liability on the facts of this case cannot be resolved on a pleadings motion. It is not plain and obvious the claim would fail. The chambers judge considered that the appellant ought to have the opportunity to develop and argue this aspect of his claim. I see no error in her conclusion.

[32]        For these reasons I would dismiss ICBC’s cross-appeal.

$60,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injury With Associated Headaches

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $60,000 for chronic soft tissue injuries with associated headaches.
In today’s case (Hinder v. Yellow Cab Company Ltd) the Plaintiff was involved in an intersection collision.  The Defendant denied liability but was found fully at fault at trail.  The Plaintiff suffered a variety of soft tissue injuries, some of which resolved.  She continued to have neck symptoms with associated headaches at the time of trial (some five years later) which were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Arnold-Bailey provided the following reasons:

[140]     The Plaintiff is a young woman, age 29 at the time of the accident. While her soft tissue injuries did not appear to be severe and some resolved, she has been left with neck pain and headaches that regularly progress to become very painful and disabling, forcing her to stop whatever she is doing. The medical evidence is that even with significant medical intervention, the neck pain and cervicogenic headaches are likely to continue into the foreseeable future. Debilitating headaches occur about every two weeks. The Plaintiff is not a complainer. She is stoic, a hard worker and she carries on despite the pain. Her home life and recreational activities have been impaired to a significantly lesser degree than likely would have been the case for a less strong and stalwart person. That does not mean, however, that she does not suffer while incapacitated by the neck pain and headaches; and she clearly misses pursuing her sports activities, particularly downhill mountain-biking, with her pre-accident intensity. She has maintained her family and social relationships because of her positive attitude and how well she generally manages her chores and commitments at home and at work in the face of her neck pain and headaches…

[149]     For these reasons, I find that an award of $60,000 in non-pecuniary damages is appropriate in the present case.

BC Court of Appeal – Jury Trial OK in Case With 40 Expert Reports

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgement were released today by the BC Court of Appeal finding a personal injury lawsuit with 40 expert reports totaling over 700 pages was not too complex for a jury to determine.
In today’s case (Rados v. Pannu) the Plaintiff alleged serious injuries as a result of a motor vehicle collision including “a traumatic brain injury; a vestibular injury that has impaired the appellant’s balance and induced bouts of nausea, dizziness and vomiting; various musculoligamentous and other physical injuries; and, a major depressive disorder”.
The Defendants elected a jury trial and the Plaintiff objected arguing the case was ‘too complex’ and pointed to the sheer volume of competing expert evidence.  The Plaintiff pointed to many cases where discretion was exercised to strike a jury in similar cases.  In finding that judicial discretion does allow for competing results and more than ” adding up the number of experts and medical issues or the number of pages of documents or the length of trial” is needed the Court provided the following reasons:

[22]         As I turn to consider the appellant’s argument, it is useful to remember that a decision whether to strike a jury notice is not only discretionary, but also engages important issues of trial management. The determination of such issues is properly a matter for the trial court. Furthermore, the onus is on the applicant to displace the presumptive right to a jury: MacPherson v. Czaban, 2002 BCCA 518 at para. 17, leave to appeal ref’d [2002] S.C.C.A. No. 480. Accordingly and appropriately, decisions of this kind attract considerable deference from this Court. These decisions turn critically on an assessment by the trial court of multiple factors bearing ultimately on the question whether a matter can be conveniently tried with the jury or should be heard without one.

[23]         The appellant points to numerous cases in which jury notices have been struck which share similarities with this case in terms of the number of medical issues, the number of experts, the nature of the issues and the length of trial. He suggests the result in this case cannot be reconciled with the results in those cases. Thus, he argues that the bar for striking a jury notice has been raised to a level beyond anything that can be accounted for by the inevitable variability of outcome inherent in the exercise of discretion.

[24]         I accept that, as was pointed out in Cochrane v. Insurance Corp. of British Columbia, 2005 BCCA 399 at para. 28:

It is unassailable that decisions under Rule 39(27) are driven by the particular facts of the case.  Even so, the facts in prior decisions are helpful in determining whether the discretion to grant or refuse an order to strike a jury notice has been exercised judicially.

[25]         It follows from this that, even allowing for the inevitable variation in outcomes arising from exercises of discretion, one would expect decisions with broadly similar facts to produce broadly predictable outcomes if discretion is being exercised judicially…

[30]         In my opinion, while other similar cases can assist in assessing whether discretion has been exercised judicially, broad and general similarities may mask material differences. The analysis does not begin and end with adding up the number of experts and medical issues or the number of pages of documents or the length of trial. Those factors may be indicative of whether the trial may be conveniently heard with a jury, but they are not necessarily the last word. They were not here because the judge delved deeply into an analysis of the factual circumstances engaged in the trial and exercised his discretion based on his assessment of those circumstances.

[31]         The appellant is not able to point to any relevant factors the judge failed to take into consideration in exercising his discretion, nor can he point to any irrelevant factors he did consider. He is not able to point to any consideration receiving too much or too little weight. In short, the appellant was not able to direct us to any specific error in the exercise of discretion that would warrant this Court interfering with the order.

[32]         The appellant suggested that if this order is not set aside, this Court would be endorsing a much higher bar for striking a jury notice than has previously been the case in this province. I do not accept that submission. In my view, this case turned on its specific and particular factual circumstances as they stood at the time of the application and as they were analyzed by the judge.  The judge then properly applied the relevant considerations to the exercise of his discretion. The case turned on its facts and does not represent a departure of principle or a resetting of the height of a bar.

[33]         Finally, it should be pointed out, as the chambers judge did, that when this matter comes on for trial, the trial judge “may order the trial to proceed without a jury if the interests of justice then require the making of such an order”. It may be that the case that goes to trial may be quite different to what now appears to be the case. As noted by Seaton J.A. in Ball v. Novlesky, [1981] B.C.J. No. 677 (C.A.) at para. 16, we and the chambers judge can examine the issue only on the basis of the record before us. The case at trial may be different and the trial judge would be free to deal with the issue then, if necessary.

[34]         In my opinion, the submissions of the appellant do not rise above an attempt to reargue the case that was rejected by the chambers judge. I do not think that the appellant has identified any error in principle in the exercise of the chambers judge’s discretion. Accordingly, I would dismiss the appeal.

$20,000 Non-Pecuniary Assessment for 17 Month Long Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, assessing $20,000 in non-pecuniary damages for recovered soft tissue injuries.
In today’s case (Scott v. Hoey) the Plaintiff was involved in a 2006 collision caused by the Defendant.  The Plaintiff was 13 years old at the time of the collision and alleged she sustained injuries which permanently impacted her and sought significant damages.  The Court rejected much of the Plaintiff’s claim noting credibility concerns.  The Court did accept that the collision cause soft tissue injuries which fully resolved in 17 months.  In assessing non-pecuniary damages of $20,000 Mr. Justice Bowden provided the following reasons:

[169]     In my view the facts and reasoning of Barrow J. in Jensen v. Felker, 2008 BCSC 541, suggest that the amount of non-pecuniary damages awarded in that case approximate those that should be awarded in the case before me. After reviewing a number of authorities where short term injuries produced symptoms in the plaintiffs for 12 to 14 months, Barrow J. awarded non-pecuniary damages of $18,000.

[170]     While the evidence supports a finding that the plaintiff’s injuries resolved within a period of about six months following the accident I am prepared to assess non-pecuniary damages on the basis that some of her symptoms may have continued until November 2007, which is a period of about seventeen months after the accident.

[171]     I award the plaintiff $20,000 in non-pecuniary damages.

Claim That Settled Day Before Trial for Under $25,000 Reasonably Brought in Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Gonopolsky v. Hammerson) deciding if a case which settled the day before trail for an amount in the Small Claims Court jurisdiction was reasonably brought in Supreme Court.  The decision was relevant as the Plaintiff’s entitled to Supreme Court Costs rested on the outcome.
In finding there was “sufficient reason” to commence the proceedings in Supreme Court Mr. Justice Brown provided the following reasons:

[36]         Considering the nature of the injuries, and the effects on homemaking and employment, I find there was a substantial possibility the damages could exceed $25,000.

[37]         Further, the plaintiff submits other sufficient reasons to commence action in Supreme Court were the insurer’s denial of coverage because the forces were insufficient to cause injury; and because the plaintiff was allegedly a worker, which if proven and given the defendant was, would see the action statute barred pursuant to s. 10(1) of the WCA.

[38]         Addressing reasons for commencing action in Supreme Court, plaintiff’s counsel states in her affidavit, sworn September 10, 2015, at paras. 8 and 9 as follows:

8.         On November 5, 2012, I received a phone call from [the ICBC adjuster who] confirmed to me at that time that ICBC’s position was that [the plaintiff] was working at the time of the Collision, and that they would require a WCAT determination on that issue.

9.         On December 14, 2012, our office filled the Notice of Civil Claim commencing this action. At the time of filing, I was of the view that examinations for discovery would be necessary because of ICBC’s position regarding worker-worker issue. Based on the medical-legal reports of Dr. Sawhney, I was also of the view that there was a real and substantial chance that [the plaintiff’s] claim was worth in excess of $25,000.

[39]         As for the WCAT issue, the defendant argued it was not complicated and could have been determined in Provincial Court. As for the basics on that matter, I understand the plaintiff was working as a cleaner at the time. The driver was on her way to work. The plaintiff’s position was that she was going to be dropped off downtown and that she was not on the way to work that day. The defendant pointed out the plaintiff was not yet legally eligible to work in Canada and, accordingly, argued the plaintiff could not recover a wage loss in the first place, making WCAT issues moot. That could be argued at trial, had it got there. As it was, the defendant never withdrew the defence before trial and when the action was commenced, the plaintiff could not reasonably be expected to know how that defence would play out.

[40]         The defendant’s position that the impact’s velocity was too low to cause an injury somewhat further complicated the case, would likely call for examinations for discovery, and at some juncture might entail an engineer’s opinion. It is unlikely the defendant would invest capital in that line of defence for this case, but it is reasonable to say the plaintiff’s burden on causation would be somewhat heavier than in a case where the force of the accident is not really in issue, which weigh in favour of a trial in this court.

[41]         Ultimately, the $22,500 settled figure compensated only non-pecuniary damages.

[42]         As similarly noted in Spencer at para. 24, the defendant’s positions effectively increased the complexity of the claim and the plaintiff’s need for counsel. “By denying liability, causation and that the plaintiff suffered any loss, the plaintiff would have been required to prove these elements at trial.” Further, at para. 25, “In taking the position that this was a low velocity impact claim the defendants created the situation giving rise to this motion. Their pleadings raised a multitude of issues in their defence. Those issues raised complex questions of fact and law. It is unlikely that a layperson could address them competently.” WCAT issues are sometimes simple. But for the plaintiff, it raised questions of mixed fact and law that raised another redoubt the plaintiff had to overcome.

[43]         The gap between the $25,000 threshold for small claims actions and the $22,500 settled on for non-pecuniary damages is not very wide, unlike the large gaps seen in some cases. A host of factors influence a settlement, but the amount settled here is at least within shouting distance of $25,000. Although that somewhat suggests the initial decision to bring action in the Supreme Court was reasonably defensible, standing alone, that is not sufficient reason.

[44]         In summary, the plaintiff has met the burden of proof required, albeit not by a large margin, but I am satisfied on balance that considering the potential damages that could be awarded for the plaintiff’s claim and the complications raised by the minimal damage and worker-worker defence, the plaintiff had sufficient reason to bring the action in the Supreme Court of British Columbia.

[45]         The plaintiff is entitled to costs of the action and of the application at Scale B.

Court Sets Mileage Rate at 50 cents / km for Independent Medical Exam Travel

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, finding a Defendant should pay 50 cents per kilometer as reasonable mileage money when a Plaintiff is compelled to travel to see a defense selected physician.
In the recent case (Nieman v. Joyal) the Defendant wished to have the plaintiff examined by an occupational therapist int he course of an injury lawsuit but could not agree on various terms including appropriate conduct money. In finding 50 cents / km is reasonable Master McDiarmid provided the following reasons:

[28]        A careful reading of Rule 7‑6 reveals that it refers to an order that the person submit to examination by a medical practitioner, and then the court is permitted to make an order respecting any expenses connected with the examination. No specific reference is made to the Schedule 3.

[29]        It seems to me that there is no difference in principle between the reasonable expenses of a plaintiff attending his own doctor, such as was awarded at 50 cents a kilometre in several of the cases, including the ones of Justice Stewart and Justice Schultes, and a plaintiff attending an independent medical examination, especially where the plaintiff agrees to attend an independent medical examination located in a different city.

[30]        Accordingly, I order the following:

1)    the plaintiff is to attend to be examined by Gary Worthington‑White, an occupational therapist, on a date to be agreed upon by the parties, with liberty to apply if there are difficulties;

2)    the defendant must provide conduct money as follows: firstly, mileage for 730 kilometres at 50 cents a kilometre, which is $365; secondly, overnight accommodation for one night at $175; and third, meals in the amount of $75. I apprehend that there will be at least four;

I know that it is approximately three and a half hours’ driving time from Burnaby to Kamloops, and it seems to me that what is reasonable here is that if the appointment ends before 4:30 p.m., it is reasonable for the plaintiff to drive home. So this is the next part of the order:  If the appointment ends after 4:30 p.m. on the date it commences, the defendant must promptly reimburse the plaintiff for one additional night’s accommodation and $12 additional meal allowance;

3)    if there are parking expenses not included in the hotel accommodation, those are to be promptly reimbursed upon being provided with the invoicing;

4)    the plaintiff can submit actual meal expenses, including alcohol, less whatever he has received in his allowance, as costs and the registrar can determine the reasonableness on assessment; and

5)    any notes recording any history or observations and data, including test results, are to be provided by October 31, 2015, or at such other date as may be agreed upon by counsel, if the presently‑scheduled examination does not go ahead.

[31]        It does seem to me that the plaintiff has been largely successful here, and so the costs of this application are to the plaintiff in any event of the cause.

ICBC Request for Photos of Dancing, Vacationing and Socializing Dismissed

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dismissing a request for a Plaintiff to produce various photographs.
In today’s case (Wilder v. Munro) the Plaintiff was injured in a 2010 collision and sued for damages.  In the course of the lawsuit ICBC reviewed the Plaintiff’s social media accounts and obtained “ten separate videos of the plaintiff dancing in rehearsals or shows in 2013, 2014 and 2015, photographs of the plaintiff performing dance moves, Facebook status posts discussing upcoming dance shows and auditions in 2011, photographs and posts about Ms. Wilder’s attendance at music festivals in 2014, travel related to the home based business and socializing with friends.“.
The Defendant brought an application requesting that

The plaintiff, within 7 days, deliver an amended list of documents:

a. identifying the photographs and video in her possession and control in which she is featured, identifying them by location, date and time, if available:

1. participating in dance training, rehearsals, auditions or competitions from 29 July 2008 to present;

2. attending music festivals since 29 July 2010;

3. socializing between January 2011 and September 2012;

4. on vacation since 29 July 2010;

ii. The plaintiff may edit the photographs prior to disclosure to protect the privacy of other individuals;

In rejecting this request Master Bouck provided the following reasons:

[16]         A party’s obligation to disclose social media content has been addressed in a number of decisions under the Supreme Court Civil Rules, including Fric v. Gershman, 2012 BCSC 614; Cui v. Metcalfe, 2015 BCSC 1195; and Dosanjh v. Leblanc, 2011 BCSC 1660. Generally speaking, the considerations for the court on this type of application include the probative value of the information sought, privacy concerns, potential prejudice to the plaintiff and proportionality: Cui at para. 9.

[17]         All three of the noted cases were personal injury actions. In all three, the plaintiff’s post-accident physical capabilities were in issue as was the impact of alleged injuries on the particular plaintiff’s social life. In the first two cases, disclosure of the plaintiff’s social media content was ordered; in Dosanjh it was not. While the plaintiff’s circumstances as described in Cui bear some resemblance to the case at bar, the result can be distinguished. Like the case at bar, the defence had obtained photographs, postings, and the like from the plaintiff’s social media platforms. However, unlike here, the defence was unable to identify the dates of the photographs or videos and thus correlate the content to either the pre or post-accident period. The court ordered the plaintiff to disclose additional social media content and identify the date or time frame of content’s creation. Of note is that this additional disclosure may not have been ordered had Ms. Cui provided the dates of the videos, photographs pursuant to the defendants’ notice to admit: para. 33. Instead, the plaintiff declined to make any such admissions thus necessitating the chambers application.

[18]         In terms of the proportionality factors, the plaintiff’s claim is not complex. There is no debate that this action will proceed to trial under Rule 15-1. The defendants filed the fast track notice and the plaintiff has no intention of having the action removed from the rule’s operation. The parties appear to agree that the trial can be completed in three days. While the plaintiff’s damages are not limited to $100,000, the evidence on this application suggests that the claim will not greatly exceed that figure, if at all.

[19]         The plaintiff is employed with no limitations on her ability to function at that job. It will be up to the trial judge to decide what compensation, if any, Ms. Wilder deserves for an overall reduced earning capacity. However, the defendants’ submissions on this application presume that a career in dance is financially lucrative and thus the potential award for this capital asset loss justifies the breadth of the order sought. If this theory was reasonably accurate, it would be expected that one or both of the parties would wish to remove the proceeding from fast track.

[20]         On the question of probative value, the defendants already have in their possession dozens of photographs and more than ten videos which show the plaintiff’s physical abilities and social activities in the years following the accident. I am not persuaded that adding to this collection is necessary to disprove the plaintiff’s claims. Moreover, the defendants have other evidence in the form of Dr. Winston’s report to also disprove the plaintiff’s claim of a lost dancing career.

[21]         Finally, I agree with the plaintiff that the defendants have failed to demonstrate the probative value of any photographs or videos depicting the plaintiff socializing or on vacation. If I am wrong on the question of probative value, then I find that the production of this information, including all that would be entailed in protecting the privacy rights of third parties, is not proportionate to the issues to be determined at trial.

Liberal Use of Discovery Transcripts Granted in Case of Indivisible Injuries

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, considering whether defendants in separate actions could use each others examination for discovery transcripts of the Plaintiff in trial.
In today’s case (Elworthy v. Tillit) the Plaintiff alleged personal injury from two separate matters.  Both parties agreed the separate lawsuits should be heard together given overlapping injury but could not agree if both defendants could use the Plaintiff’s examination for discovery transcripts from the separate actions.  In finding they could Master Bouck provided the following reasons:

6]             The defendant Stewart led the submissions on the law with references to several common law authorities including Gill v. Gill, 2013 BCSC 2365. In that case, the court decided that the implied undertaking rule could be waived so that a transcript of the plaintiff’s examination for discovery in a Part 7 action could be used in the plaintiff’s tort action, and vice versa.

[7]             Although not precisely the same factual matrix as the case at bar, I find that the legal analysis and result in Gill v. Gill should be followed here. The same concerns raised by the plaintiff in this case were considered and rejected by the court in Gill. Here, the issues of causation and indivisible injuries provide the commonality between the actions.

[8]             The defendants differ on the language to be used in this particular case plan order. In my view, the appropriate language is that found in Peel v. Western Delta, 2003 BCSC 784 at para. 30. The order pronounced is that the evidence that is otherwise admissible and relevant, obtained at the examination for discovery in Victoria Registry action no.14-0946 (either concluded or future) will be admissible both in that action and in Victoria Registry action no. 15-2263 as if the evidence had been obtained in the other action.

Failing to Overtake Traffic "As Quickly and as Reasonably As Possible" Found Negligent

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Update July 20, 2016 – the below decision was overturned today by the BC Court of Appeal.
______________________________________
Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that it is negligent for a motorist to not drive ‘as quickly and as reasonably as possible‘ when overtaking another vehicle on a highway.
In today’s case (Borgiford v. Thue) the Plaintiff vehicle was in the left hand lane of a highway overtaking tractor-trailers who were travelling at a low rate of speed as they ascended a steep hill.  The Plaintiff vehicle’s motorist was a ‘timid’ driver and was overtaking the slow moving vehicles at a speed of 85 kmph despite a speed limit of 110 kmph.  At the same time a Suburban approached the vehicles at a high rate of speed, clipped one of the slow moving tractor-trailers and lost control resulting in apparent profound injuries to his passengers.
The Court found the speeding motorist clearly negligent but went on to find the slow passing plaintiff vehicle was also negligent for not passing the tractor trailers as quickly as possible.  In reaching this finding Mr. Justice Rogers provided the following reasons:
[99]         In my view, the standard of care owed by a reasonable and prudent driver in Mrs. Boizard’s situation required that hypothetical driver to overtake Mr. Einarson’s unit as quickly as reasonably possible. I find that is the standard because the speed limit on the highway was 110 kph and any reasonable operator on that road would have known that motorists often go faster, sometimes much faster, than the speed limit. A reasonable driver in Mrs. Boizard’s situation would have known that for so long as he was in the left-most lane the entire width of the highway was occupied by relatively slow moving traffic. A motorist approaching from the rear and traveling at 110 kph would find his way blocked by the slower vehicle in the left-most lane.

[100]     I must therefore ask myself: was Mrs. Boizard overtaking Mr. Einarson as quickly as reasonably possible? Here Mr. Fiorin’s opinion does not really help Mrs. Boizard. That is because the key element of Mr. Foirin’s opinion is that operators of large vehicles are entitled to take steps to keep up the momentum of their units as they ascend a hill. That may be true, but it does not apply to Mrs. Boizard. That is because on Mrs. Boizard’s own evidence the pickup truck she was driving was capable of going up Larson Hill faster than 85 kph. This was not a case of the Boizard truck struggling to keep up its speed of 80 to 85 kph. This was a case of Mrs. Boizard making a conscious and deliberate decision to not go faster than 85 kph.

[101]     I do not doubt Mrs. Boizard’s sincerity when she testifies that she felt that it was safer to go 85 kph while passing Mr. Einarson. However, her subjective opinion cannot carry the day. The real question is whether a reasonable and prudent motorist in her situation could have and would have overtaken Mr. Einarson more quickly. The evidence does not satisfy me that a higher speed for the camper while passing would, in fact, have created an unsafe circumstance for either the Boizards or Mr. Einarson. I am thoroughly satisfied, however, that clearing the left-most lane would have created a safer circumstance for other motorists approaching from the rear. Put another way, the less time that Mrs. Boizard stayed in the left-most lane, the safer it would be for other, faster traveling, motorists who also wished to overtake Mr. Einarson’s unit.

[102]     In short, I find that Mrs. Boizard was a timid driver – she could have driven her camper faster and could have overtaken Mr. Einarson’s tractor-trailer more quickly. Instead, Mrs. Boizard chose to drive at a relatively leisurely pace and in so doing, she blocked the left-most lane for a longer period of time than was reasonably necessary. I find that Mrs. Boizard’s decision to drive as slowly as she did and to occupy the overtaking lane for as long as she did fell below the standard of care that she owed to other users of the highway. I find that she was negligent in that regard.

[103]     The question now arises whether either of Mrs. Boizard’s negligent acts was a cause of the accident. As we know from Athey it is not necessary that Mrs. Boizard’s negligence be the sole cause of the accident. The law is also clear that causation is not determined by which of the defendants had the last clear chance to avoid the mishap. All that is necessary is for Mrs. Boizard’s negligence to be a cause; that is to say, but for her negligence, the accident would not have happened.

[104]     In my view, the link between Mrs. Boizard’s negligence in changing lanes as she did is too weak to support a finding that that particular act caused the accident. I have come to that conclusion because the Thue Suburban was not in sight when Mrs. Boizard changed lanes. The Suburban came around the first curve on Larson Hill after Mrs. Boizard was in the left-most lane. The lane change itself did not put Mr. Thue and his passengers in jeopardy.

[105]     However, had Mrs. Boizard accelerated her camper to a reasonable overtaking speed, she would have blocked the overtaking lane for a shorter period of time. Given that when the accident happened the camper was at the junction between Mr. Einarson’s tractor and trailer, it would not have taken much more speed on Mrs. Boizard’s part to have gotten past Mr. Einarson ahead of Mr. Thue’s arrival. In my opinion, there is a sufficient causal link between Mrs. Boizard’s decision to overtake at a leisurely pace and the accident to support a finding that but for that decision, the accident may not have happened. Put another way, in order for the accident to have happened the way it did, it was necessary for Mrs. Boizard to have blocked the overtaking lane.