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Speculation of Further Lawsuit Not Enough To Trigger Adjournment

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.
In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time.  The Plaintiff was then involved in a fourth collision where liability was apparently in dispute.  The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action.  In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:

[5]             The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

[6]             I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

[7]             The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

[8]             The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.

[9]             In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.

$110,000 Non-Pecuniary Assessment for Fractured Ribs, Knee Injury and Chronic Pain

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a host of injuries resulting from a collision.\
In the recent case (Grewal v. Naumann) the Plaintiff was involved in a 2007 T Bone collision.  The collision was significant and resulted in 3 broken ribs, a knee injury requiring surgical intervention and a variety of soft tissue injuries resulting in some chronic symptoms.  In assessing non-pecuniary damages at $110,000 Mr. Justice Masuhara provided the following reasons:
[120]     My findings of the injuries suffered by the plaintiff from the Accident are:
(a)            three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008;
(b)            chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is some risk of arthritic degeneration but only slightly greater than the general population.  The range of motion in his right knee has always been normal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal.
(c)            soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle.
(d)            chronic pain.  While I find that there is chronicity to some of Mr. Grewal’s reported pain.  I find that the pain is at the low end of the range. 
(e)            the recurrence of a major depression which is now in remission.  Mr. Grewal had a pre-Accident history of depression, including major depression and that the Accident caused him to experience significant depression and anxiety.  The Accident related depression arose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013 no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stable state”.  Mr. Grewal’s sleep was said to be “good” by September 2012.  He has remained in remission since and that reducing his medications is a potential.  Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of the Accident. 
…

[132]     Based on my findings of Mr. Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff.  However, his depression continued for some time before going into remission; the knee injury and resulting surgery, and ongoing chronic pain (though at the low end) are factors which require added recognition. 

[133]     I assess damages at $110,000. 

$87,500 Non-Pecuniary Assessment for Neurogenic Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases.

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury.
In today’s case (Hsu v. Choquette) the Plaintiff was involved in a 2010 collision that the Defendant accepted fault for.  The collision caused compression of nerves resulting in Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $87,500 Mr. Justice Schultes provided the following reasons:

[40]         The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.

[41]         Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.

[42]         His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.

[43]         More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”…

[91]         Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levels of pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeeping capacity, I will award $87,500 under this heading.

Court Reduces Injury Victim's Compensation for Standing up to Criminal

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with a troubling finding of contributory negligence.  The Court assessed a Plaintiff partly liable for injuries sustained while being criminally assaulted by a Defendant for simply standing up to his assailant.
In today’s case (MacKay v. Jhulley) the Plaintiff was assaulted by the Defendant who struck him in the head with a one metre long metal pole.  The Plaintiff suffered permanent injuries which “severely  impaired” him .  The Defendant was criminally convicted of uttering threats and committing an assault with a weapon.
The Plaintiff sued for damages which were assessed at just under $350,ooo but these were then reduced by 15% for contributory negligence.  The negligence in question? Stepping outside of his home to confront his attacker.
Mr. Justice Kent provided the following  reasons in reaching this conclusion –

[23]         In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:

·                 Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;

·                 Mr. Jhulley was the aggressor throughout;

·                 Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;

·                 Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;

·                 Mr. MacKay defended himself by striking the accused in the right eye area with his fist;

·                 Mr. Jhulley was not acting in self-defence;

·                 Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and

·                 Mr. MacKay did not carry out any sort of unprovoked assault.

[24]         These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.

[25]         I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.

[26]         There is simply no doubt that Mr. Jhulley, fuelled by a drunken rage, drove over to Mr. MacKay’s house armed with a metal pole and intent on inflicting grievous bodily harm. It is outrageous conduct for which he must be held fully responsible not only in criminal court but in these civil proceedings as well.

[27]         Having said that, the issue of contributory fault on Mr. MacKay’s part was irrelevant in the criminal trial and it is therefore open to this Court to hear evidence and make findings on that particular issue.

….

[30]         There is, however, one basis upon which contributory fault can be attributed to Mr. MacKay. The evidence establishes that Mr. MacKay was inside the house with his family when Mr. Jhulley first presented himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay to go outside and confront Mr. Jhulley in such circumstances. Indeed, common sense dictated that the safest thing to do would be to stay in the house and call the police rather than proceeding outside to confront an enraged and intoxicated Mr. Jhulley who was armed with a metal pole and seemingly intent on doing serious harm to Mr. MacKay.

[31]         By leaving the safety of his house and presenting himself unarmed in front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had he stayed inside, the risk of serious injury would not likely have materialized and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s disregard for his own physical safety was clearly a contributing cause of the injuries he ultimately sustained.

[32]         In my view, however, the vast majority of fault for this incident and for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He formed the intent to inflict injury and carried out that intent in a vicious manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in the circumstances, thought he was in some fashion protecting his family by confronting Mr. Jhulley. His conduct is far less blameworthy.

[33]         In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley and 15% to Mr. MacKay himself.

Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

Written by admin on . Posted in BCSC Civil Rule 12. 117 Comments on Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing limits on the use of discovery evidence at trial.
In today’s case (No Limits Sportswear Inc v. 0912139 BC Ltd) the Plaintiff sought to read in evidence at trial of their former employee who was questioned at discovery as a representative of the Plaintiff.  The Plaintiff argued that Rule 12-5(47) allowed such a result.  Madam Justice Griffin disagreed and in preventing the Plaintiff from using the discovery evidence of their former employee the Court noted as follows:

[14]         The interpretation of the Rules suggested by the plaintiffs regarding the use at trial of the examination for discovery of a former employee is contrary to the underlying purposes of the procedure.

[15]         The utility of an examination for discovery would be undermined if self-serving parts of evidence of the former employee given on discovery could be read-in at trial by the party who used to employ the witness. Such a result would seriously inhibit the scope of questioning by the examining party, limiting the fact-finding nature of the discovery and its usefulness as a tool to avoid surprise at trial and to encourage settlement.

[16]         The former employer does not need to use the examination for discovery transcript in order to call helpful evidence from its former employee at trial. The former employer always has a choice of calling him as a witness at trial.

[17]         Contrary to the submissions of the plaintiffs, the fact that subrules 12-5(46), (47) and (48) are separate subrules does not lead to the conclusion that each subrule stands alone and that any party can tender the examination for discovery evidence of a former employee.

[18]         Rule 12-5(46) states that evidence given on examination for discovery may be tendered by “any party adverse in interest”. Rule 12-5(47) does not say who it may be tendered by, but instead, deals with the requirement of giving notice of the intention to tender the evidence if it is from a former employee. Subrule (47) does not say the evidence can be tendered by any party and does not supersede the requirement in R. 12-5(46) that it be tendered by a party adverse in interest.

[19]         Also relevant is the restriction on the use of the evidence as set out in R. 12‑5(46)(b). This subrule provides that the evidence is admissible only “against” the adverse party whose status as a party entitled the examining party to conduct the examination. In other words, the evidence of the former employee, if read-in at trial, is only admissible against his former employer, the plaintiff company. It cannot be read-in by one group of defendants as evidence to be used against the other defendant. The plaintiffs’ submission that the plaintiffs should be entitled to read-in portions of the evidence to be used “at large” in the trial would be contrary to these restrictions.

[20]         The purposes of subrules 12-5(47) and (48) are to deal with the situation where the former employee who was examined for discovery is hostile to his former employer, and gave evidence on discovery which the former employer does not accept and wishes to challenge. Subrule (47) requires that the party tendering the former employee’s evidence, which again by subrule (46) must be a party adverse in interest to the party who formerly employed the witness, must give 14 days’ notice before trial of the intention to tender the evidence. This then gives the party who formerly employed the witness, and any other party, the opportunity to require the witness to be produced for cross-examination at trial pursuant to subrule (48).

[21]         To deal with the possibility that the former employee may have loyalties to none of the parties at trial, subrule (48) allows all parties to cross-examine the witness if his presence is required at trial.

[22]         I find support in this interpretation in the commentary to R. 12-5(47) found in McLachlin & Taylor, British Columbia Practice, vol. 2, 3d ed. (Markham, Ont: LexisNexis, 2006) at 12-51 as follows:

Under SCR 1961, M.R. 370rr, only the examination of a person who was an officer or servant of the corporation at the time of trial could be used as evidence. This was subject to SCR 1961, M.R. 370s which effectively excluded the use of discovery of a former officer or servant who had been dismissed from employment except where such dismissal occurred after service of the appointment for examination for discovery, in which case his examination could be used with leave of the court: Seymour v. Fleetwood Logging Co., [1963] B.C.J. No. 64, 45 W.W.R. 511 (S.C.). The apparent reason for these rules was the prospect of the unfair use against a corporation of the discovery of a person no longer in its employ and possibly hostile to it.

These restrictions on the use of examination for discovery of former director, officer, employee, agent or external auditor of a party was abolished by the enactment of SCR 1976, Rule 40(24) (which became SCR 1990, Rule 40(27)): Robitaille v. Vancouver Hockey Club Ltd. (No. 2), [1979] B.C.J. No. 526, 13 B.C.L.R. 309 (S.C.), affd [1981] B.C.J. No. 555, 30 B.C.L.R. 286 (C.A.). Because a party has no choice in the selection of who is examined on his behalf under Rule 7-2(5), it is arguably unfair to burden him with such a person’s answers: see Rule 7-2(5) and comments thereunder.

Accordingly, SCR 1976, Rule 40(27) (which became SCR 1990, Rule 40(24)) was amended in 1985 to provide that the examination for discovery of a former director, officer or servant may be given at trial only if notice of the intention to do so is delivered to all parties at least 14 days before the trial. Any party may then require that the person examined attend at the trial and, if any part of the examination for discovery is given in evidence, all parties may then cross-examine the former director, officer or servant.

[23]         I conclude that the plaintiffs are not entitled to read-in passages of the examination for discovery of its former employee, Mr. Darren Hawrish.

Examination For Discovery Objections Canvassed

Written by admin on . Posted in Civil Procedure. 152 Comments on Examination For Discovery Objections Canvassed

Adding to this site’s archived procedural cases dealing with examinations for discovery, reasons for judgement were released today by the BC Supreme Court, Duncan Registry, canvassing the appropriateness of several questions relating to liability.
In today’s case (Higginson v. Kish) the Plaintiff sued the Defendant for damages following a collision for which fault was disputed.  At discovery the Defendant objected to the following three questions:

Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane?

Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes?

And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour? 

In finding the first and third questions fair but the second improper Mr. Justice Johnson provided the following reasons:

[5]             It seems to me that while one of the questions, the first one, “Do you have any possible explanation why you wouldn’t have seen Mr. Higginson’s vehicle approaching in the left lane” may have been inelegantly phrased. What it was getting at or should have been getting at is, “Was there anything obscuring your ability to see to the rear, as Mr. Higginson approached?”

[6]             That does not call upon the witness to speculate, it seems to me, if the question is properly phrased, nor does it call upon the defendant to speculate. It is relevant to the issues, that is was there anything preventing the witness from seeing to his rear. That question, together with any subsidiary questions, ought to be answered.

[7]             Question 295, which was “Will you agree with me that it would have been more reasonable to have approached highway speed before changing lanes,” does not require an answer, in my view. It is not an appropriate question to ask a witness. What that really asks the witness to do is to make the judge’s decision for the judge, and that is answer questions that involve matters of law, that is whether the activities or actions of the defendant were reasonable. I will not order the witness to answer that question or anything relating to that question.

[8]             Question 310:  “And you were aware that prior to changing lanes, that you could expect vehicles approaching at highway speed, 80 kilometres an hour?”  That expectation is a perfectly legitimate and reasonable thing to explore on examinations for discovery. The knowledge of the defendant as to the speed at which traffic was or might reasonably be expected to be travelling at the time of the accident, is permissible as a topic for exploration on discovery.

[9]             I will note that, of course, at examinations for discovery, questions of relevance still are important. But those questions of relevance are finally determined at the trial, not at the discovery, and ordering the defendant to answer question 234 and 310 says nothing about whether or not those answers or any of the evidence developed is admissible at the trial.

[10]         So the defendant will attend, for no more than an hour, to answer questions 234 and 310, and any supplementary questions legitimately and properly flowing from those two questions.

Bus Driver Liable For Driving Over Dip at Excessive Speed

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

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing fault for an injury to a bus passenger.
In today’s case (Hutchinson v. Dyck) the Plaintiff was a passenger on a bus.  As the bus drove the plaintiff “was ejected upwards from his seat and hit the seat on the way down.”.  He suffered a burst injury in his low spine which resulted in chronic mechanical back pain.
The bus driver denied fault for the incident arguing he drove with reasonable care but the Court rejected this finding he drove with excessive speed over a depression in the road which caused the injury.  In reaching this conclusion Madam Justice Duncan provided the following reasons:

[23]         The defendant was an experienced bus driver. The plaintiff was entitled to expect that he would operate the bus in a safe, proper and prudent manner. The plaintiff is not expected to assume any risk associated with the operation of the bus which could not reasonably be anticipated by a passenger on the bus. The usual route along Grace Road would not cause a passenger to be thrown up off his seat in such a violent fashion.

[24]         The defendant believed he was travelling 30 kilometres per hour when he hit the dip, but he made no note of that or other salient details on the incident form. The first time his estimate of 30 kilometres per hour was recorded came at his examination for discovery. This was an important detail which should have been noted on the incident form. The defendant was aware someone had been injured after he hit the dip in the road. The ambulance attended and took the plaintiff away. It was not a trivial matter. The defendant’s recollection of his speed well after the incident is not credible.

[25]         In addition, the defendant agreed he noted on the incident report form that he knew there was a bump in the road but could not see how deep it was due to the dark and rain prevailing at the time. In other words, he saw it but did not approach it in such a fashion as to judge it properly. The defendant’s recollection of the conditions as dark and rainy are at odds with photographs taken by his supervisor shortly after the incident was called in. While it would obviously be more light out as the morning progressed, the photographs do not depict a roadway soaked with heavy rain, further calling into question the defendant’s recollection of how the accident occurred.

[26]         In all the circumstances, I find the defendant was travelling faster than he thought on a stretch of road he knew contained a dip. He was going too fast to fully appreciate how significant a dip it was and too fast to take evasive action and brake to minimize the impact once he saw the dip. On balance I am not satisfied the defendants have shown the driver conducted himself in a reasonable and careful manner consistent with the high duty of care imposed on those engaged in public transit and I find the defendants negligent.

$75,000 Non-Pecuniary Assessment for Chronic Mechanical Neck Pain

Written by admin on . Posted in ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic neck injury caused by a motor vehicle collision.
In today’s case (Renaerts v. Renaerts) the 24 year old Plaintiff was injured as a passenger in a 2009 collision.  She sustained a variety of injuries that made a quick recovery but also sustained a neck injury which remained symptomatic to the time of trial and had a generally guarded prognosis.  In assessing non-pecuniary damages at $75,000 Mr. Justice Brown provided the following reasons:
[215]     Given accepted evidence as a whole, I agree with Mr. Shew that rehabilitation should focus on healthy activity, core strengthening, and a guided exercise program. I do not see this form of therapy requires only one assessment, off you go, and good luck to you. A kinesiologist and properly trained fitness instructor would encourage the plaintiff to expand her functioning and strength within safe medical limits and increase her confidence. Further, the plaintiff would benefit from instruction from her family physician, at no cost, on how to make the most effective choice and use of pain medication. The plaintiff had consumed six to eight pills a day…
[218]     In summary, while the plaintiff’s symptoms and limitations are likely to be permanent, and the general tenor of the opinions on prognosis is at best guarded, there are also reasonable grounds to expect that through strengthening exercises, increased activity, and appropriate use of the treatment modalities and the program just outlined, the plaintiff’s symptoms and level of functioning could see some improvement on a more sustained basis…

[241]     Chronic mechanical back pain is her only really significant injury, as the others cleared up within a couple of months or so of the accident. The record shows that she made some improvement with chiropractic treatment and physiotherapy, but I agree with those medical opinions that have opined the emphasis should be on strengthening, fitness and suitable activities. I do not see chiropractic adjustments and physiotherapy and the assistance of a kinesiologist and fitness instructor as the means of a cure, rather, as the means of helping her progress, and through strengthening, building self-confidence, be better able to cope with her limitations and reduce them, to some degree. This is not a case where the plaintiff has had to give up on her recreational activities. She is capable of independent living, albeit, she will require some limited assistance with housekeeping, such as annual cleaning. I have made some allowance for loss of homemaking capacity; but in my view, considering the nature of her homemaking limitations, $5000 is a reasonable representation of her loss in that area.

[242]     The plaintiff has sought to get on with her life to the best of her ability, with the encouragement of her friends, who amply attest to her limitations and the pain and limitations she has experienced. It is important to note that the plaintiff sustained these injuries at a time when she was somewhat vulnerable, not living at home, supporting herself and having to manage what was a fairly complex life and difficult set of responsibilities.

[243]     I award the plaintiff $75,000 for non-pecuniary damages, inclusive of loss of homemaking capacity.

Court Finds ICBC Under No Legal Duty To Inform an Insured of Hit and Run Claim Obligations

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a claim for damages following a hit and run collision.
In today’s case (Li v. ICBC) the Plaintiff was injured in a 2010 rear end collision.  After speaking with the at fault motorist the parties agreed to pull over and exchange information. The Defendant fled the scene.  The Plaintiff claimed damages directly from ICBC pursuant to s. 24 of the Insurance (Vehicle) Act.
At trial her claim was dismissed with the Court finding she did not take all reasonable steps after the collision to identify the at-fault motorist.  The Plaintiff argued ICBC could not rely on this defense as they had failed to advise her of her investigative obligations after promptly reporting the claim to ICBC.  Mr. Justice Armstrong rejected this argument finding ICBC has no duty to tell their own insured customers of their obbligatos in order to successfully claim damages caused by unidentified motorists.  The Court provided the following reasons:

[119]     The plaintiff contends that ICBC’s failure to notify the plaintiff of her obligations to take steps to identify the owner/driver as a precondition to obtaining judgment should be interpreted as waiving their right to rely on that defence. The claimant relied on Dunn where Chiasson J.A. described the two elements of a waiver claim:

[45]      As the trial judge recognized, the elements of waiver are “that the party waiving had (1) a full knowledge of rights; and (2) an unequivocal and conscious intention to abandon them”:Saskatchewan River Bungalows at 499.

[120]     The plaintiff argues that while ICBC does not have a legal or statutory obligation, it has an equitable obligation to inform its insureds of their obligations and consequences following an accident caused by an unidentified motorist’s negligence or to obviate the possibility of the claimant assuming that ICBC has accepted the claim without the need to take further steps.

[121]     Victims of unidentified motorists who do not take steps required under s. 24(5) lose access to the $200,000 fund designed to compensate the innocent victim. The plaintiff contends that claimants face serious losses when claims are defeated because they failed to take “efforts sufficient to satisfy section 24(5) (that) could have been easily and inexpensively satisfied”.

[122]     Typically claimants fail to take steps to identify the negligent driver in the expectation that ICBC is administering and adjusting their claim and will not act to their prejudice. This includes an expectation that ICBC will bring s. 24(5) to their attention. In this case there was no evidence of what expectations the plaintiff held concerning ICBC’s role.

[123]     The plaintiff argues that ICBC is overwhelmingly in the best position to inform their insureds on the process, and when they fail to do so they knowingly allow the injured claimant to fall into the trap that is s. 24(5).

[124]     Nevertheless, the evidence in this case does not satisfy me that in its administrative processing of this hit-and-run claim ICBC consciously abandoned its rights when staff discussed the plaintiff’s claim with her. I conclude that ICBC’s decision or practice of withholding information concerning s. 24(5) of the Act while at the same time addressing Ms. Li’s claim could not operate as a waiver of their right to rely on the provisions of s. 24(5) to obtain judgment.

[125]     Nothing in the evidence satisfied me that ICBC had considered the plaintiff’s claim and “unequivocally and consciously” elected to abandon its protection under s. 24(5). Further, if a hit and run claim proceeds to trial, ss. (5) is not a section of the Act that could be waived by ICBC; the section prevents the court granting judgment unless satisfied that the claimant has met the obligation under ss. (5). Although I do not decide the point, it seems to me nothing would prevent the parties from making admissions of facts necessary to prove compliance with the subsection; judgment could then be granted.

Expert Opining on All Plaintiff Injuries Disentitles Second Defence Medical Exam

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, denying a second defence medical exam in circumstances when their first examiner opined on all the Plaintiff’s alleged injuries.
In today’s case (Monohan v. Yang) the Plaintiff was examined by a neurologist of the Defendant’s choosing.  The Defendant sought a second exam with an orthopedic surgeon arguing the Plaintiff was alleging “two distinct categories of injuries, those being neurological and musculoskeletal injuries which require both a neurological and orthopedic assessment.”.
The application was dismissed on the basis that the Defendant’s first chosen examiner opined on all these issues thus making a second exam unnecessary.  In dismissing the defence application Mr. Justice Tindale provided the following reasons:

[21]        In Hamilton v. Pavlova, 2010 BCSC 493, Mr. Justice Bracken, in reviewing the principles associated with this type of application, stated the following at paragraphs 10 through 16:

[10]      Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives . . .

[11]      Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial” . . . 

[12]      Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report . . .

[13]      A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination . . .

[14]      There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff  . . .

[15]      The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary . . .

[16]      Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances . . .

[22]        In my view, Dr. Moll did fully opine on all of the physical injuries alleged by the plaintiff.  Dr. Moll gave his opinion with regard to a diagnosis, prognosis, and the causation of not only the plaintiff’s neurological complaints, but her musculoskeletal injuries.  The opinion of an orthopedic surgeon would only go to bolster the opinion of Dr. Moll.

[23]        While I appreciate the defendants may not have specifically requested the opinion that they received from Dr. Moll, he is their expert and he opined on all of the plaintiff’s physical injuries. 

[24]        Dr. Moll did raise the new issue of a psychological injury.  However, an orthopedic surgeon cannot address that issue.

[25]        For all of the above‑noted reasons, the defence application is dismissed.