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Tag: Akbari v. ICBC

Plaintiff Denied Costs for Having No Sufficient Reason to Sue in the Supreme Court

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

One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC).  You can click here to read archived decisions addressing this.  Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist.  He successfully sued ICBC and was awarded damages of just over $13,000.  Following this the Plaintiff sought costs of $17,000.  Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
[16]         I am not persuaded that there was sufficient reason to bring this action in Supreme Court.  As the plaintiff submits, the issue of liability was the primary issue at trial.  The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
[17]         Ms. Berry of ICBC had no personal knowledge of the circumstances of the accident.  I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable.  Mr. Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
[18]         I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
[19]         I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000.  The special damages and past loss of income were known.  The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr. Akbari’s family doctor, dated June 2, 2011.  In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
[20]         The report and the opinions expressed in it were sufficiently non-controversial that Dr. Rai was not required to attend for cross-examination.  In Dr. Rai’s opinion, Mr. Akbari suffered soft tissue injuries – described by Dr. Rai as “tendonious strain” affecting Mr. Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks.  Mr. Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event.  The injuries caused little disruption to Mr. Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
[21]         In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue.  That is not correct.  Unless a defendant invokes Rule 14-1, a plaintiff is normally entitled to costs.  Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only. 

Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

Written by admin on . Posted in Uncategorized. 56 Comments on Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

I have written numerous times about ICBC hit and run claims and a Plaintiff’s obligation to make ‘all reasonable efforts’ to identify an unknown motorist prior to being able to successfully sue ICBC for damages.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this obligation.
In this week’s case (Akbari v. ICBC) the Plaintiff was involved in a 2010 collision in which he struck a light pole.  The Plaintiff alleged an unknown motorist ran a red light forcing him to take evasive action in the agony of collision.  This motorist fled the scene.  Madam Justice Baker accepted this and found that an unidentified driver did indeed cause the collision.
ICBC argued that the Plaintiff’s claim should be dismissed because he failed to make all reasonable efforts to identify the motorist after the fact.  The steps ICBC suggested included staking out the intersection to try and see the vehicle on a subsequent occasion and interviewing residents at a nearby townhouse complex.  Madam Justice Baker found these suggestions to be nothing more than a ‘fool’s errand’ that would be fruitless.  In finding the Plaintiff’s actions reasonable the Court provided the following reasons:
[61]         I am satisfied that Mr. Akbari did make all reasonable efforts to ascertain the identity of the unknown driver in the circumstances that pertained here.  Mr. Akbari’s vehicle could not be driven and he was injured and in pain; he could hardly be expected to attempt to pursue the southbound vehicle on foot.  Mr. Akbari told the attending police officer ? Constable Da Silva ? that another vehicle had been involved and he provided a description of the vehicle as a light-colored – white or silver – small car.  Mr. Perez confirmed the involvement of the other vehicle and the description.  Constable Da Silva obviously considered there to be little or no prospect of locating the suspect vehicle even minutes after it had left the scene; he did make any effort to do so, or to alert other patrol cars to search for the vehicle.
[62]         Mr. Akbari recalls having inquired of Messrs. Shiles at the scene to find out if they had seen the vehicle that crossed his path.  The accident was reported to the defendant as a “hit and run” within two hours after the collision happened.  Both Mr. Akbari and his father provided statements to ICBC.  Upon learning from his counsel of his obligation to attempt to ascertain the identity of the driver who left the scene, Mr. Akbari posted a sign at the intersection asking any witnesses to come forward.  If any part of Mr. Chinchilla’s testimony is to be believed, it is that he saw the sign on the past at the intersection, and it was that sign that prompted him to contact ICBC and, eventually, Mr. Akbari’s counsel.
[63]         Mr. Akbari also contacted Constable Da Silva a few days after the accident and asked whether there was a traffic camera at the intersection where the accident happened.  Constable Da Silva said if there was a camera, it likely took only one photo ? when the light turned green ? but he said he would check and get back to Mr. Akbari.  It was reasonable for Mr. Akbari to assume that there was no camera ? or no useful footage ? when he heard nothing further from Constable Da Silva.
[64]         When Mr. Akbari realized that Ms. Berry did not know about Mr. Chinchilla and his claim to have witnessed the collision, he made sure that Ms. Berry was provided with the phone number he had for Mr. Chinchilla.
[65]         Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand.  The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining.  The resident who did call to report the collision only did so because she heard the sound of the crash.
[66]         Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path.  Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.
[67]         To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard.  I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.
[68]         I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.