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BC Court of Appeal – Losing Control on Shoulder of Road is Prima Facie Negligence

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

Reasons for judgement were released today by the BC Court of Appeal overturning a trial judgement as being ‘clearly wrong’ and finding that when a motorist loses control on the shoulder of a road a prima facie case of negligence is made out.
In today’s case (Gaebel v. Lipka) the Plaintiff was a passenger in a vehicle operated by the Defendant.  The Defendant drifted on to the shoulder of the road then “lost control, the vehicle fishtailed, crossed the road to the opposite side, travelled up onto an embankment, launched into the air and rolled over three times before landing.”.
The claim was dismissed at trial with a finding the Defendant was not negligent.  The Court of Appeal overturned this finding and provided the following reasons:

[29]         In my view driving onto the shoulder and losing control of the vehicle gives rise to a prima facie inference of negligence. On this evidence, the only reasonable inference that can be drawn was that Mr. Lipka drove on the shoulder either because of a lack of attention or because he approached the curve too fast, or both.

[30]         Once a prima facie case of negligence is proven, the onus shifts to the defendant to rebut the inference through the defence of explanation. A defence of explanation is an explanation of how the accident may have happened without the defendant’s negligence: Singleton v. Morris, 2010 BCCA 48 at para. 38.

[31]         In this case, Mr. Lipka has advanced no explanation as to how the accident may have occurred absent negligence on his part. The lack of an explanation distinguishes this case from cases such as Singleton and Nason, in which the trial judges found the prima facie case of negligence had been rebutted.

[32]         In the result, I find the respondents are wholly liable for Mr. Gaebel’s damages.

BC Court of Appeal – The Phrase Crumbling Skull is "Rarely Helpful"

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Reasons were released today by the BC Court of Appeal criticizing  the phrase ‘crumbling skull’ and spelling out the analysis a Court must take when dealing with non tort related causes to a Plaintiff’s position.
In the recent case (Gordon v. Ahn) the Plaintiff was injured in a 2009 collision and was awarded $50,000 at trial.  In reaching the award the trial judge noted that the plaintiff was a ‘crumbling skull’ and further that she failed to mitigate her damages and reduced the damage assessment by some unspecified amount.  The BC Court of Appeal ordered a new trial noting the trial judge did not properly address the evidence to justify any reductions.  In discussing what is needed of a Court when deciding what position a plaintiff would be in but for the tort the following reasons were provided:

[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing. Describing a plaintiff as coming within the “crumbling skull doctrine” does not eliminate the need for a complete analysis of the pain and suffering caused by the accident.

[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.

[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.

BC Court of Appeal Awards $200,000 for Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for judgement were released today by the BC Court of Appeal addressing damages for chronic soft tissue injuries.
In today’s case (Taraviras v. Lovig) the Plaintiff was injured in a 2002 rear-end collision.  The Plaintiff suffered “primarily neck and back injuries with referred pain down his left leg“.  After a 10 day trial a Jury awarded the Plaintiff $691,000 in damages including $300,000 for non-pecuniary damages (pain and suffering and loss of enjoyment of life).
The Defendants appealed arguing this award was “wholly out of proportion to the loss (the Plaintiff) actually suffered”.  The BC Court of Appeal agreed and reduced the jury verdict by $100,000.   However, even after this reduction, this stands as one of the higher BC Injury damage assessments for chronic soft tissue injuries which are not totally disabling.  In concluding that this is a fair assessment the BC Court of Appeal provided the following useful reasons:

[34] This case is not one in which the victim has suffered catastrophic injury.  Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). …

[36] In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras.  I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence.  In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18)….

[55] Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident.  He could no longer work in the same robust way he had worked previously.  His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work.  He could no longer participate in his previous active sporting life.  His personal relationships were affected by his short temper and more sedentary lifestyle.  He complained of constant pain in his leg and back.  He could no longer enjoy his employment.  Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life.  I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.

[56] Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention.  This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed.  It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside.  In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.

Who to Sue? ICBC Claims, Fault and Increased Insurance Premiums

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When collisions occur in BC typically ICBC is the insurer for all involved.  After the collision ICBC internally decides who to blame and apportions the parties respective degree of fault.  Depending on the decision some of the motorists insurance premiums may rise.  If this happens to you and you disagree with ICBC who do you sue?
The conventional route is to sue the motorist alleged to be at fault for the crash.  The theory being that if another motorist is found at fault in a negligence claim they will be ordered to pay the faultless party’s accident related expenses including increased insurance premiums.  When an injury lawsuit is started its easy to add this additional damage to the claim.  In practice ICBC will honour a court decision respecting fault and overturn their internal decision if its inconsistent with the Court finding.
What if you are not making an injury claim and your only dispute is with ICBC and their apportionment of fault?  Is the offending motorist the only party you can sue to address ICBC’s decision?  The answer, apparently, is no and this was recently discussed by the BC Court of Appeal in reasons for judgement released earlier this year.
In the recent case of Innes v. Bui the Plaintiff sued the Defendant for injuries.  The case made it’s way to the BC Court of Appeal.  The appeal did not focus on increased insurance fees rather it concentrated on the legal doctrine of ‘res judicata’ (You can click here to read my previous article discussing this issue and giving more background on the case).   Despite the alternate focus of the case, Mr. Justice Low provided the following commentary about the proper parties to a lawsuit over increased ICBC insurance premiums:
[6] In her hand-written Notice of Claim, Ms. Bui, with the assistance of a translator, described the collision from her point of view and added, in understandably inexact English, “later ICBC had decided that my fault but they didn’t let me know until I renew my insurance, I think ICBC was unfair when they state that I at fault and I want to [contest against?] this decision”.  The claim was stated to be for “Extra money I had to pay for ICBC” and “return my 40% discount from my insurance – $1095”.  Ms. Bui later amended the Notice and pleaded that “… ICBC put the fault on me, as the result my insurance was up.  I wish to recover the money which ICBC made me pay”.  In completing the portion of the form which requires quantification of the claim, she wrote “Money I paid for ICBC – $1095”….

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.  However, I would like to add a few more observations.

[33] In the Small Claims action, Ms. Innes was the wrong defendant.  She certainly was not a necessary defendant.  That action was not based in tort.  It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone.  That was an issue only between Ms. Bui and ICBC.

Further Clarity from BC Court of Appeal on Vicarious Liability of Vehicle Owners

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As I’ve previously written, The law places a very heavy burden on vehicle owners in BC when their vehicles are involved in an at-fault collision.  In British Columbia registered owners are “vicariously liable for the negligence of the driver where the driver acquired possession of the vehicle with the consent (express or implied) of the owner“.
What this means is, if you let someone else operate your vehicle and they are at fault for a crash then you are at fault for that crash.  Today the BC Court of Appeal published reasons for judgement clarifying the application of this legal principle.
In today’s case (Snow v. Saul) the the Plaintiff was seriously injured in Vernon BC when a vehicle owned by a man named Mr. Saul and driven by a woman named Ms. Friesen struck the Plaintiff while walking on a sidewalk.  The Defendant driver apparently fell asleep at the wheel and lost control.
The Court found that Mr. Saul did not intend to let Ms. Friesen borrow his vehicle, he in fact did so by mistake.  Mr. Justice Williams found that Ms. Friesen asked to borrow Mr. Saul’s vehicle but at the time he was busy working and did not hear her because he was hard of hearing and had his hearing aid out.  As a result Mr. Saul mistakenly thought someone else was asking to borrow his vehicle so he granted permission,   Notwithstanding this interesting factual finding the trial judge went on to find that Mr. Saul was still vicariously liable for the collision because his actions constituted ”express consent” under section 86 of the BC Motor Vehicle Act (you can click here to read my article summarizing the trial finding).
The Defendant appealed arguing the trial judge incorrectly applied the law.  The BC Court of Appeal agreed and overturned the trial verdict finding the registered owner was not vicariously liable for the crash.  In reaching this conclusion the BC High Court made the following findings:

[16]         The central question raised by this appeal is whether the effect of Vancouver Motors U-Drive is that whenever a person (“O”), of his own free will, permits his vehicle to be driven by “A”, he is deemed to have consented to the vehicle being driven by anyone, and is thus liable to an injured plaintiff for damages caused by “B”.  In my view, the case does not stand for that proposition.  The grammatical structure and wording of s. 86(1) are such that it is the “person driving the motor vehicle” who must have acquired possession with the owner’s consent.  Thus in cases where B negligently causes damage to a plaintiff, the argument made by the plaintiff depends on proof of implied consent (which as noted above is not argued in the case at bar).  In such instances, British Columbia courts have ruled that O will not be liable, without more, for injuries resulting from B’s operation of the motor vehicle.  The plaintiff must in addition show that the owner had an “expectation and willingness” that the vehicle would be driven by B: see Simpson v. Parry (1968) 65 W.W.R. 606 (B.C.S.C.), per MacFarlane J. (as he then was), citing Martell v. Chartier & Dominion Motors Ltd. [1935] 1 W.W.R. 305 (Man. C.A.) and Antilla v. Majeau (1954) 12 W.W.R. (N.S.) 575 (Alta. Ap. Div.).  More recently, in Godsman v. Peck, supra, this court ruled that without evidence that the owner of a motorcycle who had lent it to another (A), expected that A would lend it to a third party (B), the owner’s consent to B’s operating the cycle could not be implied.  As the Court stated:

There should be evidence to show, or support the inference, that the owner turned his mind to the likelihood of that further transfer of possession. If there is no such evidence, a court finding liability on the owner’s part is not implying consent so much as deeming it. One of the commendable goals of s. 79(1) may be to induce owners of motor vehicles to exercise discretion when transferring control of them to others, but to impose liability in a case where such a transfer was not within the contemplation of the owner would do nothing to further that goal, and simply goes too far.  [At para. 28; emphasis added.]

(See also Smaldino v. Calla [1999] B.C.J. No. 2816 (S.C.).)

[17]         Conversely, consent may be implied from a course of conduct or circumstances known to the owner, as illustrated by Deakins v. Aarsen [1971] S.C.R. 609.  There it was held that an owner who had lent her car to her son to use whenever he wanted it, had not discharged the onus on her under s. 105(1) of the Highway Traffic Act, R.S.O. 1960, c. 172, to prove that when the son had lent the car to his girlfriend, he had done so without the mother’s consent.  The Court emphasized in brief reasons that the car was “for all practical purposes” the son’s car and that his mother exercised no control over who was to drive it.  She had been aware the girlfriend was her son’s “constant companion” and the trial judge evidently disbelieved her evidence that she had told her son not to let anyone else drive the car.

[18]         Counsel for the plaintiff submits that the implied consent cases are irrelevant to this case, which he says concerns “consent at law, not consent in fact”.  In his submission, what was in the owner’s mind is irrelevant as long as he gave up possession of his vehicle as a result of the exercise of his free will.  Thus what Mr. Weatherill characterizes as a “mistake” on Mr. Saul’s part when he gave his consent is neither here nor there – just as the “mistake” under which the employees of the car rental company in Vancouver Motors U-Drive Ltd. were labouring was found not to affect the validity of its consent to the fraudster’s operation of its car.

[19]         In my respectful view, however, this case is very different from Vancouver Motors U-Drive, where the appellant’s employees intended to lend the car to the person standing before them, and that person in fact drove the car.  In the case at bar, accepting the trial judge’s findings of fact, the owner did not consent to Ms. Friesen’s driving his truck.  He was told that “Neal” wanted to borrow it.  That is what Mr. Saul expressly consented to.  It defies common sense to say that he in fact consented to Ms. Friesen’s driving it.  Indeed, the trial judge accepted at para. 37 of his reasons that Mr. Saul would not have lent his vehicle to Ms. Friesen, as opposed to Neal Bourgeois.

[20]         Does the fact that we are here concerned with the application of a statutory provision change this common-sense conclusion?  Again, in my view, the answer is no.  Section 86 does not on its face “deem” one to have the owner’s consent when he or she does not have it in fact; nor does it impose a “legal” definition of consent that is at variance with the ordinary and natural meaning of the word.  The respondents rely heavily on the two purposes of s. 86, as described in Yeung, supra.  I do not see that the second objective is engaged in this case since, despite Mr. Weatherill’s suggestion that Mr. Saul had “casually” consented to lending his car, there is no evidence Mr. Saul did anything other than take reasonable care in consenting to Neal Bourgeois’ using his truck.  The trial judge found that Mr. Bourgeois did not share his partner’s drug addiction and that Mr. Saul is a “reasonably careful person who does not take unnecessary chances.”  (Para. 36.)  As for the expansion of the availability of compensation, s. 86(1) goes only so far: it does not state that whenever a person uses another’s car, the owner is vicariously liable.  The intention of the legislation is to place liability on a person who permits his car to be used by another, where that other negligently causes injury to a plaintiff.  In this case, the person to whom Mr. Saul gave his consent was Neal Bourgeois.  It was not Mr. Bourgeois who drove the truck negligently.

[21]         In the result, I would allow the appeal and set aside the trial judge’s order imposing vicarious liability on Mr. Saul pursuant to s. 86(1) of the Act.

BC Court of Appeal Discusses Non-Pecuniary Damages for Chronic Pain

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

Reasons for judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair range of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic pain caused by the negligence of others.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a motorcycle accident in 2005.  The Defendant was found fully at fault for the crash.    The Plaintiff suffered a fractured tibia and fibula.  These bony injuries went on to good recovery however the Plaintiff was left with chronic pain as a consequence of the collision.  At trial the Plaintiff was awarded $562,000 in total compensation for the injuries including a non-pecuniary damages award of $125,000.  (You can click here to read my post summarizing the trial judgement)
The Defendant appealed arguing that this assessment was inordinately high.  The BC Court of Appeal disagreed and held that in cases of chronic pain which affect functioning there is nothing inappropriate with non-pecuniary damage awards well over $100,000.  Specifically the BC High Court held as follows:

[32]         A review of those cases supports the respondent’s argument that the trial judge’s award of $125,000 was within the acceptable range.  In Moses v. Kim, 2007 BCSC 1388, the plaintiff was struck while crossing the Trans-Canada highway, breaking his legs.  While the breaks healed, the plaintiff was left with pain in his legs, back and hip.  As he had been a very physical person prior to the accident, hunting, fishing, logging and playing sports, much of his life was affected.  In addition to restricting the activities he could enjoy, this led him to become shorter tempered and angrier.  He was awarded $165,000 in non-pecuniary damages.

[33]         The plaintiff in Funk v. Carter, 2004 BCSC 866, was also struck by a vehicle and suffered broken legs, as well as some soft tissue injuries.  While the plaintiff underwent surgery, the injuries did not heal well, and he was left with chronic pain and impaired mobility.  As with the case at bar, and with Moses, the plaintiff had been “very fit” prior to the accident, and had “a great deal of difficulty adjusting psychologically”.  As a result, he was awarded $140,000 in non-pecuniary damages.

[34]         Moore v. Brown, 2009 BCSC 190, was a case similar to that at bar where the plaintiff was on a motorcycle when struck by the defendant.  He suffered substantial injuries, including a shoulder injury, a leg ligament tear, knee problems and a foot injury.  The accident also led to chronic neck pain, headaches and lumbar problems.  Three years later, at trial, the plaintiff was still experiencing difficulties, including an altered gait and difficulty continuing in his work as a geo-scientist.  The trial judge awarded non-pecuniary damages of $115,000.

[35]         In Dufault v. Kathed Holdings Ltd., 2007 BCSC 186, the plaintiff fell while descending the stairs at the defendant’s business.  The fall resulted in knee injuries that the trial judge accepted would likely require knee replacement surgery.  This was exacerbated by chronic pain, hip problems, and some resultant mild depression.  Taking these considerations into account, the trial judge awarded $110,000 in non-pecuniary damages.

[36]         Finally, in Mosher v. Bitonti, 1998 CanLII 5186 (B.C.S.C.), the plaintiff sued two defendants for separate accidents.  The trial judge found that the plaintiff had suffered fractured right leg bones as a result of the first accident, which caused muscular damage.  He accepted that these were “very significant injuries” and that the plaintiff had suffered a painful recovery.  While there was a small chance of future degenerative arthritis, the plaintiff was left with a normal gait, but with some difficulty squatting, kneeling or crouching.  Those injuries resulted in the plaintiff being awarded $80,000 in non-pecuniary damages.

[37]         As can be seen from those cases, trial judges have assessed non-pecuniary damages at well over $100,000 where there is an element of significant ongoing pain and, particularly, where the plaintiff had previously enjoyed an active lifestyle or a physical vocation….

[39]         I agree with the respondent that the trial judge did not assess damages on the basis of a well-resolved fracture.  Rather, the award for non-pecuniary damages was largely based on the trial judge’s conclusions that the respondent suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life.  Viewed in this way, the award cannot be said to be inordinately high.  The chronic pain cases cited by the trial judge support her assessment.

[40]         I would not accede to this ground of appeal.

Another point of interest in today’s case were the Court’s comments about gathering new evidence after trial to challenge an award for ‘diminished earning capacity‘.  At trial the Plaintiff was awarded $250,000 for his loss of earning capacity.  The Defendant appealed and asked the Court of Appeal to force the Plaintiff to produce “documents pertaining to his employment since the trial“.  The BC High Court refused to do so and provided the following useful comments:

[43]         An appellate court should decline to exercise its discretion to make an order to admit “new evidence”, unless that evidence would tend to falsify an assumption that the trial judge made about what was, at the time of judgment, the future:  see Jens v. Jens, 2008 BCCA 392 at para. 29, citing North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201 (C.A.)(sub nomNorth Vancouver (District) v. Lunde).

[44]         It is unnecessary for me to review in detail the nature of the evidence tendered on the application by the appellant and in reply by the respondent.  Suffice it to say that the conclusions the appellant contended should be drawn from her proposed new evidence were clearly and persuasively refuted by the respondent in an affidavit and, in any event, did not rise to the necessary factual standard that would properly form the basis for a successful application for admission of new evidence.

The BC Public Healthcare System: Too Slow for Injured British Columbians?

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British Columbia has a great public heath care system.  If you are sick or injured you can see a doctor, if diagnostic tests are prescribed they are covered.  If surgery is required the public health care system will take care of that as well.
As great as our system is, however, it is not without its flaws.  One of the biggest shortcomings is delay. Many people involved in serious injury claims quickly come to this conclusion.  If you need to see a specialist the wait can be long.  Delays can be equally long for diagnostic tests and surgical intervention.  Some people with means prefer not to wait and seek out private health care services instead.   Where there is a need the market tends to fill it and some entrepreneurial companies have sought to fill this void and offer British Columbian’s services on a private basis.
There is a tension, however, between the Government of BC and these private health care facilities.  These tensions were demonstrated in reasons for judgement released today by the BC Court of Appeal.
In today’s case (Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), the Province of BC sought a Court order allowing a government inspector  to access the premises of the Cambie Surgeries Corporation and to perform audits to see if violations of the Medicare Protection Act are taking place through the clinics private services.
At the trial level the BC Supreme Court ordered an injunction requiring these audits to take place.  The Cambie Medical Clinic appealed arguing that provisions of the BC Medicare Protection Act are unconstitutional because they “have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner“.
Ultimately the BC Court of Appeal set aside the trial decision finding that the government should have applied to a justice of the peace for a warrant to inspect Clinic rather than seeking an order through a lawsuit. Before reaching this verdict the BC Court of Appeal set out the following provisions which restrict the availability of private health care services in BC and the argument alleging this restriction is unconstitutional:

[4]             The Medicare Protection Act governs the administration of British Columbia’s Medical Services Plan (the “Plan”), the primary public health insurance scheme in the province.  Most residents of B.C. are enrolled as beneficiaries and most physicians are enrolled as practitioners entitled to payment for their services under the Plan.  A number of the provisions of the Act are relevant to the appeal.  Rather than setting them out in the body of these reasons, I have appended the relevant portions of the statute.

[5]             In the normal course, practitioners bill the Commission for services performed for beneficiaries, and the Commission pays the practitioners in accordance with its established payment schedules.  Section 14 of the Act allows enrolled practitioners to opt out of the normal payment arrangements and to bill patients directly.

[6]             Unless a physician has opted out or is not enrolled in the Plan, s. 17 prohibits him or her from charging a beneficiary for the provision of a service covered by the Plan.  Where a physician has opted out or is not enrolled, s. 18 prohibits him or her from charging a patient more than the amount that the Plan would pay for a medical service.

[7]             Together, ss. 17 and 18 greatly restrict the scope for medical practitioners to bill patients directly for their services.  Section 18 also prohibits “extra billing” – i.e., billing a patient for an amount beyond that which the Plan pays for a service.

[8]             The clinics admit that they have engaged in practices that would violate the statutory prohibitions against direct and extra billing if those prohibitions are constitutional.  Some patients have signed “acknowledgement forms” confirming their understanding that they are being billed for amounts in excess of those provided for under the Plan.

[9]             The clinics contend, however, that ss. 14, 17 and 18 of the Act are unconstitutional.  They allege that those provisions have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner.  Relying primarily on Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, the clinics argue that the impugned provisions of the Medicare Protection Act violate the rights of patients to life, liberty, and security of the person in a manner that is not in accordance with principles of fundamental justice, contrary to s. 7 of the Canadian Charter of Rights and Freedoms.  They have commenced an action seeking a declaration that the impugned provisions are unconstitutional.

It appears that this battle will continue to play out before the Courts.  It will be welcome, for both patients and health care practitioners alike, to have certainty in this area of law so that British Columbians can better know what healthcare care options are available to them when they are in need of care.

BCCA Addresses Burden of Proof of "Failure to Mitigate" Defence in Injury Claims

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If you’re injured through the fault of another and successfully sue you are entitled to be compensated for your losses and damages.  However, if you ignore medical advice or otherwise fail to take reasonable steps to minimize your losses your damages may be reduced.  This principle in personal injury law is called “failure to mitigate“.
The Defendant has the burden to prove that a Plaintiff failed to mitigate their damages.  If the evidence does not establish that absent the alleged ‘failure‘ the injuries would have appreciably improved then no reduction in damages will be made.  Today the BC Court of Appeal released reasons for judgement upholding a trial verdict addressing this.
In today’s case (Mattu v. Fust) the Plaintiff suffered reasonably serious injuries in a 2004 BC motor vehicle collision.  These included symptomatic disc herniations in his back.  At trial the Plaintiff succeeded and was awarded just over $170,000 for his damages.  (You can click here to read my summary of the trial verdict).
The Defendant appealed arguing the Judge should have reduced this award because the Plaintiff did not take reasonable steps to rehabilitate his injuries.  The BC Court of Appeal disagreed and concluded that the trial judge appropriately applied the law.    In reaching this verdict the BC High Court provided the following useful comments about mitigation in personal injury lawsuits:
[7] I am not prepared to assume the judge ignored the evidence, nor can I say that the evidence was so important that it required specific mention. The judge concluded the respondent was well motivated in seeking recovery from his accident injuries and that conclusion is reasonably based on the record. The judge was not, in my opinion, looking for absolute proof of a failure to mitigate. The fact of the matter is that on the civil standard the appellant failed to establish that the respondent’s less than full compliance with medical recommendations would have made any difference to his continuing disability. The respondent never took the case on mitigation beyond generalities, such as: it is always preferable to follow your doctor’s advice. The judge drew an inference from the evidence that the respondent did not fail to mitigate. On the palpable and overriding error standard, I can see no basis for interfering with her finding in this regard.
When faced with an argument from ICBC or another defendant that you ‘failed to mitigate‘ your injuries keep in mind that they need to prove this allegation with evidence.  If you’re looking for more information about the law of mitigation in injury claims you can click here to access my archived posts.

BC Court of Appeal to Consider Discretionary Costs Awards and Formal Settlement Offers

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After dozens of trial judgements which have applied Rule 37B (the current rule dealing with formal settlement offers which will be replaced with the almost identical Rule 9 on July 1, 2010), the BC Court of Appeal has agreed to hear what I believe will be their first case dealing with the application of this rule.
Reasons for judgement were published today on the BC Court’s Website where the BC High Court agreed to hear such an appeal.  In today’s case (Gehlen v. Rana) the Plaintiff was injured in a BC motor vehicle collision.  The Plaintiff sued.  Prior to trial ICBC made a formal settlement offer of $22,000.  The Plaintiff rejected this and proceeded to trial.  At trial a jury awarded just over $13,000 in damages.
In these circumstances the trial judge had the discretion to order that the Plaintiff pay the Defendant’s trial costs.    Mr. Justice Leask refused to do so and instead ordered that the Defendant pay the Plaintiff’s costs.   (You can click here to read my article discussing the trial decision).
The Defendant (through ICBC) asked for permission for the BC Court of Appeal to hear the case and they agreed to do so.  In deciding that this case merits an appeal the BC High Court reasoned as follows:

[3]             I am satisfied that the defendant has met the test for leave to appeal on both grounds, as that test is set out in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. 3d 396 (B.C.C.A.) (Chambers). With respect to the merits of the appeal, I appreciate that an order for costs is a discretionary order to which an appellate court will give considerable deference. I am nevertheless satisfied that the first ground of appeal may be characterized as a question of law, and the second as an error in principle. In fact, counsel advises that leave has been granted in another appeal on the question of whether it is appropriate to adjust costs on the basis that one party chose a jury trial.

[4]             The issue is of significance to the parties as the order under appeal entitles the plaintiff to costs in the range of $47,000, while if the defendant is successful he will recover costs in the range of $8,000.

[5]             It is more difficult to see significance to the practice in this appeal, but I do not find that militates against granting leave. The defendant does say that this court has not had the opportunity to hear many cases that provide guidance on R. 37B and its interaction with R. 57(10).

[6]             Finally, being an order for costs at the end of the action there is no need to consider possible delay due to the appeal.

As I recently wrote, ICBC has asked the Court of Appeal to also consider the issue of ‘costs’ awards when Plaintiff’s receive a judgement below $25,000 at a BC Supreme Court trial and these appeals may be heard together.

Clarity from the BC High Court will be welcome on numerous issues regarding the effects of formal settlement offers and costs awards after trial and I will be sure to report the highlights of the decisions when they are pronounced.

BC Court of Appeal Finds Cyclist 50% at Fault for "Cycling Between Lanes"

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Reasons for judgement were released today by the BC Court of Appeal addressing the issue of fault for a cyclist involved in an intersection crash.
In today’s case (MacLaren v. Kucharek) the Plaintiff cyclist was injured when he was travelling through an intersection in Surrey BC when he was struck by a left hand turning vehicle approaching from the opposite direction.  At  trial the driver of the vehicle was found 100% at fault.  The vehicle operator appealed and the BC High Court overturned the trial judgement and found the cyclist 50% at fault.
The roadway the cyclist was travelling on had one marked lane but as it approached the intersection it “widens…(and) although unmarked as two lanes, there is sufficient room for two vehicles to travel abreast within the one marked lane.”  Critical to the Court’s judgement was a finding that although unmarked, the roadway had “two de facto lanes” just prior to the intersection.
It was accepted that vehicles that drove in the right of these two defacto lanes were right turning vehicles. Vehicles that intended to drive straight through the intersection stayed in the left hand portion of the wide lane.  As the cyclist approached the intersection a vehicle in front of him in his direction fo travel stopped and left a “gap in the traffic lined up behind the intersection“.  The Plaintiff passed this traffic on the right and entered the intersection (basically travelling down the centre of these two defacto lanes).  At the same time the Defendant made a left hand turn into the intersection resulting in collision.  The Defendant testified that he never saw the cyclist prior to the crash.
The driver was found at fault for failing to see the cyclist.  In finding the cyclist 50% at fault the BC Court of Appeal provide the following reasons:
The question that arises, however, is whether Mr. MacLaren should have “taken the lane”; that is, ridden behind the other traffic in the lane, rather than do what he did which was to put himself beside vehicles in that lane and to pass them on the right…

…In my view it is not so much that Mr. MacLaren was passing on the right when he was struck by the appellant, but that he was riding between what were effectively two lanes of travel before entering the Laurel Drive intersection.  In my view, s. 183(2)(c) (which required him to ride as near as practicable to the right side of the highway), did not authorize him to ride between two lanes of travel.  For Mr. MacLaren to ride between two unmarked but commonly travelled lanes immediately prior to reaching the Laurel Drive intersection was dangerous because a northbound left-turning driver would have little opportunity to see him as he cycled alongside vehicles to his left.  In my view, given the configuration of the roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle alongside vehicles to his left created a danger both to himself and to the appellant.

[29] While Mr. MacLaren did the right thing by moving out of the curb lane, he should have moved in behind the vehicles travelling toward the “through” lane, not beside them.  By cycling between lanes Mr. MacLaren did not show sufficient care for his own person to avoid a finding of contributory negligence.  Taking a lane was the only way, in my view, that a bicyclist could have satisfied the mandate of s. 183(2)(c) to safely travel as near as practicable to the right of the highway…

I am of the view that the trial judge erred in failing to conclude that Mr. MacLaren, in choosing to ride in between the two travel lanes and beside the stopped pick-up rather than in the lane of travel behind it, did not take reasonable care for his own safety.  His failure to take reasonable care for his own safety was one of the causes of the accident.  Mr. MacLaren was therefore contributorily negligent.