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$20,000 Non-Pecuniary Assessment For Modest and Lingering Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for modest soft tissue injuries sustained in a collision.
In today’s case (Hall-Smith v. Yamelst) the Plaintiff was involved in a so called ‘low velocity’ collision in 2009.  Fault was admitted by the offending motorist.  The Plaintiff alleged she sustained fairly serious injuries from the collision with detrimental consequences.  The Court had issues with the Plaintiff’s credibility but did accept the collision caused some level of lingering injures.  In assessing non-pecuniary damages at $20,000 Madam Justice Dillon provided the following reasons:

[50]         The plaintiff lacked credibility about the nature of her injuries. The physical complaints were out of proportion to the severity of the accident. While this court appreciates that not all plaintiffs respond the same way to a minor incident and that a minor accident does not in itself define injury, this plaintiff’s response was so unrealistic as to affect credibility. The plaintiff was vague or could not remember when asked about post-accident activities in cross-examination and her answers were contrary to other witnesses. The documentary evidence that the plaintiff completed herself in April and May 2009 belied the suggestion that she was still considerably disabled from injury sustained in the accident or that she was suffering back and knee pain. ICBC and Turning Point documents completed by the plaintiff mentioned only pain in her neck. She misled Mr. Nordin by attributing her relapse back into drugs shortly after the accident as due to taking prescribed medication, by implying that her UBC employment was permanent and that she left due to increased back pain, and by telling him that she left the licensed practical nurse programme due to back pain and financial difficulty.

[51]         The preponderance of medical opinion does not find that knee or groin pain was caused by the accident. The plaintiff’s fiancé was unaware of any knee pain.

[52]         It is accepted that the plaintiff suffered soft tissue injury to her neck and mid back as a result of the accident. Dr. O’Connor also said initially that she suffered exacerbation of a pre-existing degeneration of the spine that caused low back pain that had not existed prior to the accident. However, the doctor changed this view when faced with the suggestion of no complaint of back pain until the plaintiff saw Dr. Harjee in October 2009 and the plaintiff’s failure to report back pain in important documentation in April and May 2009. In these circumstances that were brought to Dr. O’Connor’s attention, he concluded that the farther the low back pain complaint was from the accident, the less likely that it had been caused by the accident. But, the plaintiff had reported back pain in her first visit to the doctor immediately after the accident. In this circumstance, Dr. O’Connor’s initial opinion still prevails and it is accepted that the plaintiff suffered exacerbation of her pre-existing degenerative condition as a result of the accident and began to have pain in her lower back that did not exist prior to the accident. In any event, the injury to the plaintiff’s neck and back had largely resolved by the time that the plaintiff saw Dr. O’Connor in December 2011. At that time, any residual pain was as a result of the exacerbation of the pre-existing degenerative disc condition and heightened pain from chronic anxiety unrelated to the accident. The plaintiff would have suffered back pain at an early age eventually in any event of the accident. In all of the circumstances, it cannot be concluded that all of the plaintiff’s present symptoms are as a result of the accident. The prognosis of Dr. O’Connor is accepted, however, so that at least a small part of her ongoing back and related pain is attributable to the accident and there is no prospect for resolution with time.

[53]         Despite her injuries, the plaintiff was able to enter and succeed in a rehabilitation programme for the first time within two months of the accident. She felt sufficiently secure in her physical wellbeing to engage in dodgeball and other activities. She was able to work at a shoe store where she maintained part time employment for the first time. She completed a nine month medical office assistant programme that was rigorous in time demands. She was able to get work as a medical office assistant but did not keep the work for reasons that were not related to injury from the accident. She eventually found employment suited to her and has successfully worked full time since June 2014. Given the plaintiff’s pre-accident background and her dependence upon social assistance due to chronic anxiety, she has done quite well since the accident despite injury. The plaintiff has managed despite the injuries. From all of this, the nature of the injuries suffered in the accident, and the existence of other non-accident related physical ailments, it is concluded that the injuries suffered in the accident were relatively minor and did not prevent the plaintiff from establishing herself away from a troubled past…

[55]         It is important to remember that non-pecuniary damages are awarded to compensate an individual for the pain, suffering and loss of enjoyment of life and loss of amenities caused by the accident and that the compensation awarded should be fair and reasonable to both parties (Miller v. Lawlor, 2012 BCSC 387 at para. 109 (Miller)). The fact that this was a low velocity collision does not rule out injury (Dao v. Vance, 2008 BCSC 1092 at para. 19; Naidu v. Gill, 2012 BCSC 1461 at paras. 33-34). The inexhaustive list of factors to be taken into account in the assessment of non-pecuniary damages is well established as listed in Miller at para. 105 and Buttar v. Brennan, 2012 BCSC 531 at para. 35. These factors have been considered in coming to the conclusion here.

[56]         The plaintiff had substantially recovered from the effects of the accident by December 2011 when she first saw Dr. O’Connor, except for aggravation of the pre-existing degenerative disc disease. The impact of the accident upon the life of the plaintiff was not significant. She was able to recover to the extent that only her neck pain was worthy of her comment by the spring of 2009. She was able to rehabilitate and educate herself for the first time. She was able to start serious work and eventually get and maintain full time employment that she never had before. She started and has maintained a stable family life. As in Sevinski v. Vance, 2011 BCSC 892 at para. 84, it not possible to determine here the extent of the plaintiff’s participation in sports and other activities prior to the accident based upon her evidence and prior lifestyle. There is no evidence of prior regular participation that was hindered by the accident.

[57]         The plaintiff is awarded $20,000 for her non-pecuniary damages.

BigLaw the Novel – Exposing the Guts of Big Firm Life

Written by admin on . Posted in Uncategorized.

BigLaw Image
A bit of an off-topic post from this site’s personal injury theme, but a quick shout out to my sister in law, Lindsay Cameron, who has just published her first novel, Big Law, a story influenced after being involved in the grind in both Canadian and US top tier lawfirms.
If you are looking for a fun read this fall its great for lawyers, lawyers to be and those with the sense to steer clear from the profession altogether!
You can find it on amazon.ca, amazon.com for you US folks and Barnes and Noble.
You can follow Lindsay on twitter here. Enjoy!

Pain Clinic Treatment a "Mandatory" Item Under ICBC's Part 7 Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether ICBC’s no-fault benefits cover payment for treatment at a pain clinic.  In short the Court found they do.
In today’s case (Park v. Targonski) the Plaintiff was injured in a collision and sued for damages.  At trial future care costs were awarded including $8,500 for treatments from a pain clinic.  The Defenant argued that these damages should be deducted as ICBC must cover the cost under the Plaintiff’s no fault beneifts.  In agreeing with this submission and finding such treatments are included in ICBC’s no-fault coverage Mr. Justice Fitch provided the following reasons:

[44]         …The narrow issue before me is whether a pain clinic that is focussed on “necessary physical therapy” is a mandatory benefit as contemplated by s. 88(1).

[45]         The mere fact that psychological and/or cognitive obstacles to optimal physical rehabilitation are likely to arise in the administration of what amounts, at its core, to a physical rehabilitation program does not negate the fact that the program is designed to achieve “necessary physical therapy.”  The law must take cognizance of our growing awareness of the intersection between physical and mental therapy.  Indeed, it is difficult to envision aggressive implementation of the sort of active rehabilitation Back in Motion has in mind without necessarily engaging psychological and/or cognitive issues, particularly for an individual in the plaintiff’s situation.  Looking at the issue this way, it is unnecessary and unrealistic to hold that a physical therapy program that incidentally engages psychological and/or cognitive issues ought not to be characterized as a s. 88(1) benefit in circumstances where the language of the provision does not dictate this result.  Further, it is undesirable for courts to embark upon the impossible task of deciding which discrete components of a holistic pain program constitute s. 88(1) benefits because they are purely given to physical therapy, and which components fall outside the scope of s. 88(1) because they engage psychological issues that stand as barriers to the successful implementation of an active rehabilitation program.  Such an approach is not only artificial, it is one that would breed uncertainty and spawn further litigation in an area already beset by what the Court of Appeal in Raguin charitably described as “jurisprudential inconsistencies”.

[46]         As is evident from the foregoing, I favour the result reached on this point in Klonarakis.  In the result, I am of the view that a pain clinic focused on “necessary physical therapy” is a mandatory benefit; one that shall be paid by ICBC even in circumstances where it is anticipated that psychological issues may arise in the implementation of the program.

[47]         As noted in Ayles v. Talastasi, 2000 BCCA 87 at para. 32:

As a claim covered by s. 88(1) I.C.B.C. is obliged to pay the benefits. It is not a matter of discretion under s. 88(2) where entitlement depends “on the opinion of the corporation’s medical adviser”. The risk in deducting too much from the tort award for discretionary benefits is that I.C.B.C. may ultimately refuse to pay on items which although found to be compensable in the tort claim were deducted on the assumption that they would be paid as a no fault benefit. In that instance the claimant is out of pocket for the expense and I.C.B.C. enjoys a windfall. But here the class of future expense is obligatory, not discretionary, and so the plaintiff does not stand to lose anything by the deduction. It is only in circumstances where the classification of the future cost is unclear or an issue arises whether the item is covered by Part 7 at all, that some caution is required.

[48]         As I am satisfied in this case that the pain clinic is a mandatory benefit and that ICBC is obliged to reimburse the plaintiff for all reasonable expenses associated with her attendance at the clinic, there is no uncertainty as to whether this benefit will be paid.

Chronic Regional Myofascial Pain Syndrome Leads to $125,000 Non-Pecuniary Assessment

Written by admin on . Posted in ICBC Chronic Pain Cases.

Reasons for judgement were released today assessing damages following chronic injuries sustained in a collision.
In today’s case (Kam v. Van Keith) the Plaintiff was injured in a 2011 rear end collision.  The Defendant admitted fault.  The Plaintiff complained of” injuries to her neck, upper and lower back, shoulders, she suffers from depression, sleep disturbance, fatigue, headaches and has chronic pain”.  These were ultimately diagnoses as a chronic regional myofascial pain syndrome and the Plaintiff’s symptoms were not expected to make meaningful improvement.  In assessing non-pecuniary damages at $125,000 Mr. Justice Cole provided the following reasons:
[15]        Dr. Apel does not state the plaintiff has fibromyalgia but does find she has some symptoms of fibromyalgia. She makes a conclusive diagnosis of chronic regional myofascial pain syndrome which is unchallenged by the other experts…
[24]        I was impressed with Dr. Apel. She saw the plaintiff on two occasions. Her report was thorough and detailed as was her examination. I am satisfied that the kinesiologist that worked with the plaintiff (which I assume was in response to Dr. Piper’s recommendation in his first report) between November 2013 and April 2, 2014 along with her continual rigorous workout program that she had continued to do following his recommendation of a kinesiologist has not improved her condition and I am satisfied that it is unlikely her symptoms will improve in any significant way. In my view she had tried everything possible. She has applied herself in a rigorous discipline fashion and four years after the accident she still has chronic lower back pain…

[25]        Non-pecuniary damages are awarded to compensate a plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities. The factors to consider are set out in Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal refused, 2006 SCC 100. Any assessment of damages of course must be fair to both parties, and must be decided on the facts of the particular case.

[26]        The plaintiff is still relatively young, being born in November 1975. The nature of her injuries are significant and they have subsisted at least in the lower back for four years. The plaintiff has suffered emotionally and her life has been impaired. It has also adversely affected her family, her marital relationship and her social relationships. She is incapable of doing practically all the sporting activities that was a vital and vibrant part of her personality and her relationship with her husband, her family and friends. Although she only took three days off work purely because she is stoic is not a reason to generally penalize the plaintiff…

[31]        I am satisfied, considering all of the evidence that the proper award is the amount of $125,000.

"Reprehensible" Conduct Results in Special Costs Order Against Plaintiff Following Injury Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay ICBC special costs following ‘reprehensible‘ conduct.
In today’s case (Tambosso v. Holmes) the Plaintiff was injured in two collisions and sued for damages.  Prior to trial the Plaintiff received $36,895 in tort advances from ICBC.  After a largely unsuccessful prosecution the trial damages awarded were slightly less than this resulting in a ‘zero judgement’  award.   As a result the Plaintiff was ordered to pay the Defendant costs.
The Court went further, however, and ordered that the costs be increased to special costs as a result of the Plaintiff’s conduct.  In reaching this decision Mr. Justice Jenkins provided the following reasons:

[33]         Commencing at para. 52 of my reasons for judgment in this matter, I embarked upon my findings related to the credibility of the plaintiff. Previously in those reasons I had come to a conclusion that the plaintiff’s evidence regarding the “triggering event” causing her alleged PTSD and other psychological concerns had not happened. To be clear, the event in which the plaintiff claimed she feared for her life and had to jump out of the way of the vehicle driven by the defendant Holmes, as per her evidence that “his eyes are imprinted on my mind” and “I thought he was going to kill me, drive over me…” did not occur. Her evidence in this respect was contradicted by the independent witness who stated she had not exited her vehicle, as well as by the evidence of the plaintiff’s friend and passenger that the plaintiff had exited her vehicle but had taken only a few steps before jumping back into their vehicle before the Holmes vehicle came up the hill and passed the plaintiff’s vehicle. I found it most likely the plaintiff learned of the look in Mr. Holmes eyes from the independent witness, Jeremy Leal, who was in close proximity to Mr. Holmes immediately after the accident.

[34]         The plaintiff repeated her false version of the events of the 2008 accident to several of the expert witnesses who testified at trial which led those experts to come to opinions as to the plaintiff suffering PTSD and other cognitive damage as a result of the interaction with Mr. Holmes. The deception by the plaintiff continued for several years up to and including the trial.

[35]         In addition, my reasons for judgment at trial referred to clear conflicts between the evidence of the plaintiff and the video surveillance recorded by the defence, her evidence that she was not able to drive after the 2008 accident which conflicted with her driving of a rental car within days of the accident for several months, her Facebook postings, and her evidence at trial which was selective, inconsistent, completely uncooperative, non-responsive and simply false. The plaintiff’s evidence on cross-examination resulted in me coming to a conclusion that she had deliberately lied to her disability insurer, to Community Futures where she was paid for attempting a business development plan, to Canada Pension Plan staff and more, all of which resulted in her maintaining an income from the time of the 2008 accident up to trial in 2014. The plaintiff would declare in one instance that she was disabled from the 2008 accident and when convenient to keep funds coming her way would declare she was not disabled by that accident.

[36]         The conduct of the plaintiff which must be considered most outrageous and reprehensible for the purposes of a special costs award were the circumstances under which her former friend, Rebecca Aldous, came to be a witness at trial for the defence. Those circumstances are described commencing at para. 188 of my reasons for judgment, which included reference to a voice mail message left by the plaintiff two days before Ms. Aldous was to testify. That message can only be interpreted as an attempt to intimidate Ms. Aldous from testifying. Why the plaintiff would leave a voice mail message of that nature which could and did come back to haunt her is a mystery; however, it is reflective of the behaviour of the plaintiff throughout the trial.

[37]         I have no doubt that the actions of the plaintiff at trial and outside the courtroom have amounted to an ongoing effort to deceive the court which conduct deserves rebuke.

[38]         I agree with the principles in awarding special costs listed by Madam Justice Gropper in Westsea Construction Ltd. A court must show restraint and must be satisfied of special circumstances to justify the award. The conduct rationalizing an award of special costs must also be “reprehensible”. Those principles are present in this case and are supported by the conduct of the plaintiff detailed in the reasons for judgment for the trial and earlier in these reasons.

[39]         The defence is entitled to special costs to be taxed by the registrar, such costs as incurred by the defence from the commencement of each action until the conclusion of the trial.

$70,000 Non-Pecuniary Assessment for Chronic Back and Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic back and knee injury sustained in a collision.
In today’s case (Ali v. Fineblit) the Plaintiff was involved in a collision that the Defendant was found fully liable for.  The injuries included a low back and knee injury which remained symptomatic at trial and had a poor prognosis.  In assessing non-pecuniary damages at $70,000 Madam Justice Gerow provided the following reasons:

[82]         As indicated above, Ms. Fineblit concedes that Mr. Ali suffered a soft tissue injury to his back and an injury to his left knee in the accident.

[83]         It is clear from Mr. Ali’s evidence, as well as the evidence of his family, treating health care professionals and the medical experts that he is suffering from ongoing symptoms in his left knee and low back.

[84]         Prior to the accident Mr. Ali did not have any problems with his left knee or low back. The evidence is that Mr. Ali’s knee injury has impacted all areas of his life, including his work. The evidence is that he was very physically active, and ran and hiked on a regular basis to offset the sitting demands of his job. Since the accident, he has not been able to return to many of his pre-accident activities, such as running, snowboarding and hiking. As well, Mr. Ali’s ongoing left knee symptoms prevent him from doing some of the household chores, and his wife has taken on more of the household duties and cleaning. Mr. Ali’s wife and sister testified that his mood had changed since the accident and he does not have the easy going nature he did prior to the accident.

[85]         The evidence is that the symptoms from his left knee and back injury have all impacted his work. Mr. Ali travelled by plane frequently for his work prior to the accident. Since the accident, Mr. Ali had limited his air travel because he has trouble sitting on long flights. Mr. Ali testified that he experiences increased pain in his knee after sitting on flights. As well, Mr. Ali has increased back and knee symptoms from sitting at his desk or standing for long periods of time.

[86]         As noted earlier, while there maybe some improvement to Mr. Ali’s left knee and back symptoms over time with a supervised exercise program, there is a likelihood that his left knee injury will cause limitations and pain indefinitely and he will suffer from ongoing flare ups of back pain. I find that as a result of the accident, Mr. Ali has been left with ongoing chronic pain in his left knee which is unlikely to resolve, and intermittent pain in his back. Dr. Fuller and Dr. Stewart agree it is likely Mr. Ali will have some symptom improvement with further physiotherapy and/or active rehabilitation.

[87]         I have reviewed the cases provided. Each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are individual in nature. The cases provided by Mr. Ali are to some extent predicated on his submissions that the accident exacerbated his headaches, which as stated above, is not supported by the evidence. The cases provided by Ms. Fineblit are to some extent predicated on her submissions that Mr. Ali’s back improved within four weeks of the accident which were rejected.

[88]         In summary, the accident caused injuries to Mr. Ali’s left knee and back which have been slow to resolve. There is a likelihood that the symptoms and restrictions of the left knee are permanent, and he will continue to suffer from intermittent back pain as a result of the accident. Having considered the evidence, and the cases provided by counsel, it is my view that an award of non-pecuniary damages in the amount $70,000 is appropriate.

$90,000 Non-Pecuniary Assessment For Chronic Migraine Headaches

Written by admin on . Posted in ICBC Headache Cases.

Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic migraine headaches along with a low back injury caused by a collision.
In today’s case (MacDonald v. Joseph) the Plaintiff was injured in a 2011 head on collision caused by the Defendant.  The Plaintiff suffered a variety of injuries, some of which recovered but was left with a legacy of chronic migraine headaches and low back pain.  In assessing non-pecuniary damages at $90,000 Madam Justice Dillon provided the following reasons:

[21]         The plaintiff had substantially recovered from the accident after 18 months but he continued to suffer and continues to suffer accident caused symptoms related to migraine headaches, lower back pain and occasional neck pain. The headaches suffered as a result of the accident are of a different nature and consistency than any headaches before the accident which dated back to 2009 and were not medically treated. The treatment for chronic headache related to head and neck trauma is difficult and often unhelpful, according to Dr. Robinson who considered that the plaintiff was not a candidate for preventative medications. He expected the plaintiff to have recurring headaches for the next three to five years with a definite risk for persisting headaches indefinitely. These would not be expected to be a “substantial impediment” in continuing with the plaintiff’s janitorial career.

[22]         Decisions in similar cases presented by counsel suggest a range for the non-pecuniary damages suffered by the plaintiff from $55,000 to $100,000. In my view, the plaintiff here suffers headaches more frequently at present than the plaintiff in Sandhu v. Gabri, 2014 BCSC 2283. The nature of his job doing heavy physical work places him in a more precarious position at work than the plaintiff in Rutledge v. Jimmie, 2014 BCSC 41. The plaintiff was off work for a considerably longer period than the plaintiff in Wepryk v. Juraschka, 2012 BCSC 974. At the same time, the plaintiff is not in constant pain as was the plaintiff in Smith v. Fremlin, 2013 BCSC 800 and has not developed psychological or pain disorders as a result of the accident as the plaintiff did in Roth v. Hes, 2015 BCSC 161. Nonetheless, the plaintiff’s prognosis of persisting debilitative headaches into the future with unresolved low back and neck pain more than four years after the accident place him at the higher end of the range. Non-pecuniary damages are awarded in the amount of $90,000.

Low Velocity Impact Engineering Evidence Found to be Unhelpful

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, assessing the ‘low velocity impact’ defence.
In this week’s case (Pitcher v. Brown) the Plaintiff was involved in a 2004 collision and sued for damages.  The impact was a modest one.  The Court rejected much of the Plaintiff’s claim following credibility/reliability concerns in her testimony.  The Court was equally dismissive of the defence strategy of calling engineering evidence to discuss the modest forces of the collision.  The Court concluded, as have many previous judgments, that demonstrating forces are modest alone is no defence to an injury claim.  In rejecting the LVI aspect of the defence Mr. Justice Betton provided the following comments –

[106]     As to the forces involved and the probability of injuries resulting, the defence relies upon the opinion of two experts. Dr. Craig Good has a degree and Masters in Applied Science-Mechanical Engineering and a doctor in Philosophy in Mechanical Engineering. He opined that it is “highly unlikely that Ms. Pitcher sustained an acute Mild Traumatic Brain Injury at the time of the subject collision when her head contacted the head restraint.”

[107]     Gerald Sdoutz is a professional engineer who provided opinion evidence about the impact severity in the collision and compared it with activities such as sitting down in a low back office chair, coughing or sneezing or being jostled in a crowd.

[108]     While that expert evidence provides some insight I find its utility to be limited. It puts in perspective that the forces involved in the collision were modest. It does not preclude the conclusion that the plaintiff did receive injuries in this collision. In that regard I look to the expert medical evidence and the evidence of the participants in the collision. I will, in subsequent portions of this decision, address specifically my findings in relation to the plaintiff’s injuries.

How Much is it Worth if You Can't Drive Your Ferrari?

Written by admin on . Posted in Uncategorized.

If you own a Ferrari and really want to drive it but can’t because of another’s actions, how much is that worth?  $15,000 according to reasons for judgement released today by the BC Supreme Court.
In today’s case (Miller v. Brian Ross Motorsports Corp.) the Plaintiff’s Ferrari was damaged while being serviced at the Defendant dealership.  The Plaintiff sued for damages arguing he should be entitled to $80,000 for the period which he could not use the vehicle.  The Court found the Defendant’s conduct did indeed wrongfully deprive the plaintiff of use of this vehicle for a period of approximately 9 months.  In assessing damages at $15,000 Madam Justice Dardi provided the following reasons –
[59]        In assessing the appropriate quantum of damages for the loss of use, I have considered the following factors:

  • The plaintiff derives great pleasure from driving his Ferrari and he was deprived of driving it for many months including through the summer months of 2013.
  • During the Material Period, the plaintiff had an alternative vehicle, the Acura, available for transportation purposes.
  • Although the plaintiff endeavoured to drive his Ferrari as frequently as possible, he would not have driven it on a daily basis throughout the Material Period. On his own testimony, he did not drive the Ferrari in the rain, or for work purposes. The Ferrari was insured for “pleasure” and could only be utilized for work purposes a maximum of six days per month.
  • The plaintiff travelled away from Vancouver for work and for pleasure during the Material Period.
  • Although the plaintiff adduced evidence of a rental rate from Mr. Stirrat of the Vancouver Car Club for a substitute Ferrari, he did not take steps to rent such a vehicle. The defendant challenges the reliability of Mr. Stirrat’s evidence on the rental rate. The rate the plaintiff urges this court to apply is the advertised price and notably, Mr. Stirrat was unable to confirm if any vehicle had, in fact, been rented at that price. In addition, the advertised vehicle is not the same model or year as the Ferrari. Further, although the plaintiff calculated the annual rate by extrapolating the monthly rate, no evidence was provided regarding whether the price would differ for long term renters. Overall, I found the evidence regarding the advertised rental rates to be of limited assistance.

[60]        The plaintiff points out that if he had rented a replacement Ferrari, he would have been entitled to special damages for incurring that cost. However the plain fact is that he did not rent a replacement vehicle. Here, the plaintiff’s claim is for general or non-pecuniary damages for loss of use. The doctrinal underpinnings related to general damages are distinct from special damages. Special damages are awarded to compensate a plaintiff for out-of-pocket expenses and generally are calculable monetary losses. In contrast, an award of general or non-pecuniary damages is intended to compensate the plaintiff for more intangible losses and is not a matter of precise arithmetical calculation.
[61]        Finally, in assessing general damages, the court must, on a balanced consideration of the evidence, endeavour to tailor an award that is reasonable and fair as between the parties: Kates v. Hall, 53 B.C.L.R. (2d) 322 (C.A.) at 322; Nason v. Aubin (1958), 16 D.L.R. (2d) 309 (N.B.S.C.) at 314.
[62]        On a balanced consideration of the relevant factors, I assess the plaintiff’s damages for loss of use of the Ferrari during the Material Period as $15,000.

Bare Assertion of Contemplated Litigation Does Not "Cloak Investigation" In Privilege

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing the merits of a claim for litigation privilege.
In today’s case (Buettner v. Gatto) the Plaintiff was injured in a collision and advanced a claim for damages.  The Plaintiff retained counsel.  Liability was initially admitted and then denied by ICBC.  The Plaintiff brought an application for production of various relevant documents and ICBC refused disclosure on the grounds that litigation was reasonably contemplated once Plaintiff counsel was assigned.
The Court rejected this finding this position was based on little more than a bare assertion.  In ordering production of the requested documents Master Caldwell provided the following reasons:

[31]         If this argument is correct, all that any or all adjusters must do in any or all motor vehicle cases is determine, at the instant that the incident is reported, that he or she is going to deny liability and/or the presence of damages without the need to show any basis or accountability for such decision. Having done so, that will virtually ensure that litigation will be required to resolve any claim for loss. Thereafter, having created the virtual certainty of litigation, the defence will be able to reasonably argue that any and all investigations done from the instant that the incident is reported is for the dominant purpose of the conduct of the litigation which they ensured by the arbitrary denial of fault or damage.

[32]         In my respectful view this circular argument runs counter to the letter and spirit of the Hamalainen case, the numerous cases which were cited in and followed by Hamalainen and the numerous cases which have cited and have followed Hamalainen. It runs counter to the stated object of our Supreme Court Civil Rules, B.C. Reg. 168/2009, the securing of the just, speedy and inexpensive determination of every proceeding on its merits. It runs counter to the Supreme Court of Canada decision in Blank v. Canada (Minister of Justice), 2006 SCC 39 and its findings at paras. 60 and 61 where it comments in affirming the dominant purpose test and the role of litigation privilege, that:

The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

And,

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client

And finally,

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[33]         Inherent in the reasonable prospect/dominant purpose test must be the expectation or requirement that there be at least some evidence of bona fides, due diligence or accountability on the part of the party seeking to rely on the prospect of litigation, which was created by their own actions, to support their claim of litigation privilege. Absent such requirement the test itself becomes meaningless. This is particularly of concern where, as here, the same insurer provides coverage for both parties and, presumably, owes each a duty of some form of meaningful investigation and determination of facts before reaching a decision on an issue as important as fault or liability for a motor vehicle accident.

[34]         I find that there is no evidentiary basis provided to support the decision of Ms. Hilliam to deny liability. Her unsupported decision cannot be used as justification for her to conduct a proper investigation into the facts of this motor vehicle accident while cloaking that investigation in a claim of litigation privilege. The time line and analysis of the court in Hamalainen is applicable to this case and to the evidence here, save as to the assertions of Ms. Hilliam which I reject. As in Hamalainen, the claim of litigation privilege regarding documents 4.7 to 4.12 inclusive, which documents were created prior to the June 17, 2013 form letter communicating the denial of liability, fails and all such documents are ordered produced forthwith and unredacted.