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Party Substitution Orders and ICBC Unidentified Motorist Claims

Written by admin on . Posted in Civil Procedure, Uncategorized.


As previously discussed, when injured by the fault of an unidentified motorist in BC, a Plaintiff can sue ICBC directly for damages in place of the unknown motorist provided section 24 of the Insurance (Vehicle) Act is complied with.
After a lawsuit starts, if the unknown motorist becomes known then the Plaintiff can substitute the appropriate party.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an application and, interestingly, denying it alleging the Plaintiff failed to identify the appropriate party in a timely fashion.
In this week’s case (Turnbull v. ICBC) the Plaintiff was allegedly injured when struck by a customer at his store.  The Plaintiff failed to properly record the licence plate information of the motorist.  The Plaintiff sued ICBC and as the litigation progressed the Plaintiff believed he was able to identify the offending motorist through employment records identifying the correct licence plate of the vehicle alleged to be involved.
The Plaintiff brought an application to substitute this person into the lawsuit.  The application was denied with Master Caldwell providing the following reasons:

[22] In the present case, the plaintiff knew of the existence of documentation which would have identified potential defendants at the time of and at all times following the alleged incident.  The plaintiff retained counsel shortly after the incident.  The plaintiff and his counsel were aware well before the expiry of the limitation period that identification of the vehicle and driver was a central and important issue in the claim.  No application was made during the limitation period, or even during the year following the expiry of the limitation period, to pursue the documents which the plaintiff knew existed and knew might well identify the vehicle and the driver.

[23] In short the plaintiff, and the plaintiff alone, bears the responsibility for the failure to identify potential defendants in a timely fashion and certainly within two years of the incident plus one year to serve.  In such circumstances, if limitation periods are to have any meaning and effect in our system, the interests of justice and the potential prejudice to the intended defendant outweigh the interests of the plaintiff.

I question the correctness of this decision given section 24(6) of the Insurance (Vehicle) Act which provides as follows:

(6) If the identity of the unknown owner or driver is ascertained before judgment is granted in an action against the insurer as nominal defendant, then, despite the limitation period in the Motor Vehicle Act, that owner or driver must be added as a defendant in the action in substitution for the corporation, subject to the conditions the court may specify.

This lack of duty when seeking to substitute parties under s. 24(6) should not be confused with a Plaintiff’s duty to continue to make all reasonable efforts to ascertain the identity of the unknown motorist to maintain a section 24 action against ICBC through to trial.
I understand that the above decision is under appeal and if further reasons are issued addressing this I will provide an appropriate update to this post.

LVI Defence Rejected, $27,500 Non-Pecuniary Assessment for Soft Tissue Injuries

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 1 Comment on LVI Defence Rejected, $27,500 Non-Pecuniary Assessment for Soft Tissue Injuries

In my continued effort to highlight the judicial treatment of the Low Velocity Impact defence, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such a strategy.
In last week’s case (Guzman Gonzalez v. Dueck) the Plaintiff was involved in a 2009 rear-end collision.  The Defendant admitted fault for the crash but denied the Plaintiff suffered injury arguing the the crash occurred at “about one kilometre per hour” and that if felt like “a little love tap“.
Mr. Justice Burnyeat rejected this evidence finding as follows:
[6] The damage to the respective vehicles was $1,270.80 to the vehicle of Mr. Guzman Gonzalez and $1,001.52 to the vehicle of Mr. Dueck.  Mr. Dueck described the damage to his vehicle as being “a little damage to the front-end bumper”, “it got pushed down”.  I do not accept the evidence of Mr. Dueck that his vehicle was only going one kilometre per hour and that the collision only involved “a little love tap”.  Although the damage to the vehicles was not extensive and although I can conclude that this was a low impact collision, I cannot reach the conclusion that the respective damage to the vehicles could have been caused by the collision described by Mr. Dueck.
In assessing non-pecuniary damages at $27,500 the Court made the following findings:

[28] On the basis of the testimony of Mr. Guzman Gonzalez, the expert opinions of Drs. Tong and O’Connor, and the testimony and reports of Mr. Snip, I can conclude as follows regarding the extent and the duration of the pain and suffering of Mr. Guzman Gonzalez caused by the accident:

(a) Regarding the low back pain experienced by Mr. Guzman Gonzalez, I conclude that he had fairly constant pain for the first month or so, but that his complaints had resolved by the time Mr. Guzman Gonzalez saw Dr. Tong on October 21, 2009.

(b) Regarding the headaches suffered by Mr. Guzman Gonzalez, while Mr. Guzman Gonzalez testified at his Discovery that he had his last headache in December 2010, I am satisfied on the basis of the medical legal opinion of Dr. O’Connor that any headaches associated with the accident were common daily for the first three months, but had largely resolved within three to four months so that Mr. Guzman Gonzalez now only experiences headaches every so often.

(c) Regarding the pain experienced in his shoulder, Mr. Guzman Gonzalez confirmed that there is only pain when he lifts his arm above his head or when he sleeps on that particular shoulder.  I take into account the following evidence to come to the conclusion that the neck and shoulder pain caused by the accident lasted in the neighbourhood of six to eight months, although it was particularly acute during the first two months after the accident:  (i) by December 5, 2009, Mr. Guzman Gonzalez was reporting to Dr. Tong that there was only “occasional flareup” associated with the “tightening up of the muscles”; (ii) the clinical notes of Dr. Tong did not record any complaint by Mr. Guzman Gonzalez about neck and shoulder pain for the December 5, 2009 through February 20, 2012 visits; (iii) in his February 20, 2012 medical legal opinion, Dr. Tong noted that there was neither “residual neck musculo-ligament tenderness” on palpation, that the left shoulder exhibited “slight decreased external rotation and abduction”, and that there was “no tenderness on the anterior aspect of the left shoulder”; (iv) neck pain and left shoulder pain was described by Dr. O’Connor in his December 16, 2011 legal opinion as being “about 50% better”; and (v) in his December 16, 2011 opinion, Dr. O’Connor states that the neck pain was “initially triggered by musculoligamentous strain to the neck, and likely aggravation of the cervical facet joints at the mid-cervical spine”.

[29] The x-ray arranged by Dr. Tong in late 2009 indicated “moderate osteoarthritis of the  acromio-clavicular joint” and that this “may cause impingement”.  There is no medical evidence which would allow me to conclude that the accident caused an acceleration of the osteoarthritis or that this would not have developed but for the accident.  In the circumstances, I find that the condition described by Dr. O’Connor was the result of a degenerative condition in the AC joint which had previously not caused pain to Mr. Guzman Gonzalez but is presently causing pain during or after what Dr. O’Connor described as “overhead reaching”.  The prognosis of Dr. O’Connor is that there is an increased risk of injury or aggravation of the left shoulder with any heavy lifting or overhead reaching or carrying required in the occupation of Mr. Guzman Gonzalez.  I find that this ongoing problem is attributable to the osteoarthritis and not to injuries caused by the negligence of Mr. Dueck.

[30] As a result of the injuries caused by the negligence of Mr. Dueck, I find that Mr. Guzman Gonzalez was not able to play tennis for about six months, that he had limited ability to play soccer, that he was less active on the dance floor for six to eight months, but that, after about eight months, he was fully able to carry on with all of his previous recreational activities.  I find that any further limitations regarding his recreational activities can be attributed to a problem that Mr. Guzman Gonzalez has with his knee which is in no way associated with the results of the injuries he suffered as a result of the accident.

[31] Taking into account the injuries suffered by Mr. Guzman Gonzalez as a result of the accident and the duration of the pain and suffering of Mr. Guzman Gonzalez, I assess the non-pecuniary damages of Mr. Guzman Gonzalez at $27,500.

$60,000 Non-Pecuniary Assessment for Chronic Rotator Cuff Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, assessing damages for a rotator cuff injury sustained in a motor vehicle collision.
In the recent decision (Antonishak v. Piebenga) the Plaintiff was injured in a 2008 collision.  Fault was admitted focusing the trial on damages.  The Plaintiff sustained a right shoulder rotator cuff tendinopathy resulting in shoulder instability.

The Plaintiff symptoms lingered to the time of trial and had a “guarded prognosis” for further recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Wong provided the following reasons:
[3] As a result of the accident, Mr. Antonishak sustained the following injuries:  soft tissue strain to neck and arm, right shoulder rotator cuff tendinopathy, anterior and inferior instability of the right glenohumeral joint and right ulnar neuropathy. Mr. Antonishak was then 27 years of age. He is now 32 years. These injuries have affected his employment duties and also interfered with his active recreational pursuits and lifestyle. The plaintiff complains that since the accident he has continued to suffer from right shoulder and arm pain together with fatigue. At the time of the accident, the plaintiff was employed as a waiter at the Hotel Eldorado Restaurant in Kelowna. As a result of his injuries, he claimed he missed seven days from work and, on other occasions, ended his shifts early due to increased pain and fatigue from his injuries. He said there were also a number of employment tasks expected of him that he was unable to perform due to his injuries. The plaintiff also said his injuries continued to interfere with his employment and with his various extracurricular activities. These ongoing functional impairments and limitations cause him concern of what his future holds as it relates to his ability to pursue various careers and occupations…

[7] At trial, Mr. Antonishak projected as an energetic, ambitious, and engaging person. He is certainly not a malingerer nor a layabout. He has plans for a future in the restaurant/hospitality industry as an entrepreneurial owner. When not working, he also likes to engage in active recreational sport pursuits and extensive international travel. He has a natural curiosity about foreign cultures and environments. He enjoys his present occupation as a fine dining server, but encounters pain and fatigue if he overworks his right arm and shoulder. He has curtailed some, but not all of his active recreational activities for fear of aggravating his weakened right shoulder and arm.

[8] For the foreseeable future, Dr. Monteleone has suggested cautious monitoring of Mr. Antonishak’s condition with continued stretching and muscle strengthening program. If his present condition eventually becomes intolerable relative to his future career and lifestyle, then stabilizing shoulder surgery may need to be done. This would involve major surgery with potential six-month recovery time thereafter. In the meantime, the plaintiff lives with a weakened right-hand grip and chronic troubling pain and fatigue if he overtaxes himself in above-shoulder or extensive reaching or pulling activities.

[9] After four years of chronic troubling pain and fatigue with guarded prognosis of future improvement together with curtailed recreational activities, I fix this item of damage at $60,000.

Supreme Court of Canada Clarifies Law of Dangerous Driving

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 151 Comments on Supreme Court of Canada Clarifies Law of Dangerous Driving


The Supreme Court of Canada released reasons for judgement this morning clarifying the required elements of the Criminal Code offence of Dangerous Driving.
In today’s case (R v. Roy) the Defendant was driving a motor-home carrying a passenger. Visibility was limited due to fog and the road they were on was relatively steep, snow?covered, and slippery. He pulled out from a stop sign to turn onto a highway.  As he did so he pulled into the path of an on-coming tractor-trailer resulting in a serious collision killing his passenger.  He was convicted of Dangerous Driving Causing Death at the trial level.  The BC Court of Appeal upheld his conviction.  The Supreme Court of Canada overturned the conviction and in doing so provided the following exchange highlighting that something beyond mere negligence is required to cross the threshold into criminality:
[30] A fundamental point in Beatty is that dangerous driving is a serious criminal offence.  It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established.  Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy.  The distinction between a mere departure, which may support civil liability, and themarked departure required for criminal fault is a matter of degree.  The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[31] From at least the 1940s, the Court has distinguished between, on the one hand, simple negligence that is required to establish civil liability or guilt of provincial careless driving offences and, on the other hand, the significantly greater fault required for the criminal offence of dangerous driving (American Automobile Ins. Co. v. Dickson, [1943] S.C.R. 143).  This distinction took on added importance for constitutional purposes.  It became the basis for differentiating, for division of powers purposes, between the permissible scope of provincial and federal legislative competence as well as meeting the minimum fault requirements for crimes under the Canadian Charter of Rights and Freedoms (O’Grady v. Sparling, [1960] S.C.R. 804; Mann v. The Queen, [1966] S.C.R. 238; Hundal).  Thus, the “marked departure” standard underlines the seriousness of the criminal offence of dangerous driving, separates federal criminal law from provincial regulatory law and ensures that there is an appropriate fault requirement for Charter purposes.

[32] Beatty consolidated and clarified this line of jurisprudence.  The Court was unanimous with respect to the importance of insisting on a significant fault element in order to distinguish between negligence for the purposes of imposing civil liability and that necessary for the imposition of criminal punishment…

[37] Simple carelessness, to which even the most prudent drivers may occasionally succumb, is generally not criminal.  As noted earlier, Charron J., for the majority in Beatty, put it this way: “If every departure from the civil norm is to be criminalized, regardless of the degree, we risk casting the net too widely and branding as criminals persons who are in reality not morally blameworthy” (para. 34).  The Chief Justice expressed a similar view: “Even good drivers are occasionally subject to momentary lapses of attention.  These may, depending on the circumstances, give rise to civil liability, or to a conviction for careless driving.  But they generally will not rise to the level of a marked departure required for a conviction for dangerous driving” (para. 71).

Cyclist Found 50% at Fault For Crash After Passing Vehicle on the Right

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 55 Comments on Cyclist Found 5055 at Fault For Crash After Passing Vehicle on the Right

Further to my recent article on this topic, cyclists passing a stopped vehicle on the right can be faulted for a resulting collision.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Kimber v. Wong) the Plaintiff cyclist was approaching a T intersection.  A vehicle was stopped in his lane of travel leaving a gap for the Defendant who was driving in the opposite direction intending to make a left hand turn.  The Cyclist passed the stopped vehicle on the right.  At the sane time the Defendant turned resulting in collision.

Mr. Justice Pearlman found both parties equally to blame for the incident.  In doing so the Court provided the following reasons:

[66] By passing to the right of the stopped eastbound vehicles, Mr. Kimber put himself in a position where he was not visible to a left-turning driver and where his own view of traffic turning across his path was blocked by the vehicles to his left.

[67] The plaintiff maintains that he was the dominant driver with the right of way as he approached the intersection and that under s. 174 of the Motor Vehicle Act, and that Ms. Wong, as the servient driver intending to turn left, was required to yield the right of way to him.

[68] As Madam Justice Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:

The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully …

[69] Here, that analysis does not apply where Mr. Kimber was in breach of s. 158 of the Motor Vehicle Act and his common law duty to take reasonable care by keeping a proper lookout.

[70] However, that does not absolve Ms. Wong from liability.  Ms. Wong made the left turn knowing cyclists using the oncoming lane often rode to the right of vehicles.  She knew she had to keep a lookout and would have to yield to any oncoming traffic, including cyclists that presented an immediate hazard.

[71] She began her turn from a point where she was unable to see beyond the windshield of the vehicle stopped at the western entrance to the intersection.   She made a continuous accelerating turn and did not stop or pause when she reached the point, just across the centre line, where she had a sight-line that would have enabled her to see the plaintiff.  Had she inched forward or stopped when she had a clear sight-line, the plaintiff would have passed safely in front of her and the accident would have been avoided.

[72] I find that in heavy traffic and where her view of the eastbound lane was limited, Ms. Wong was negligent in failing to inch forward until she could see whether there was an obstacle to her safely completing her left-hand turn.

[73] I turn now to consider whether the plaintiff was contributorily negligent.  As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger.  He failed to keep a proper lookout before entering the intersection.  He failed to take reasonable care for his own safety or that of other road users.  Here, the plaintiff could have pulled into the line of slow moving or stopped vehicles and then taken his turn to pass through the intersection.  Alternatively, the plaintiff ought to have been alert to the danger of passing stopped traffic at the intersection and ought to have brought his cycle to a stop to the right of the red Hyundai where he could observe traffic turning into the intersection.  Had he done so the collision would have been avoided.  I find that the plaintiff was also negligent and that his negligence was a cause of the accident.

[74] The apportionment of liability requires a consideration of the degree to which each party is at fault.  Fault is apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties:  Cempel v. Harrison Hot Springs, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75] Here, the plaintiff and the defendant were both familiar with the intersection where the accident occurred.  For her part, the defendant was aware of the risk of cyclists approaching to the right of oncoming eastbound traffic but made her left turn without maintaining a proper lookout for a known risk.

[76] For his part, the plaintiff ought to have slowed down and entered the line of eastbound vehicles before passing through the intersection, or if he remained to the right of the line of stopped vehicles, he ought to have stopped alongside the stationary Hyundai before proceeding into the intersection, where he would have had an unobstructed view of the hazard ahead.

[77] In my view, the plaintiff and the defendant are equally at fault.  I apportion liability 50 percent to each of the plaintiff and the defendant.

Well That's That…Bill 44 and 52 Pass Third Reading

Written by admin on . Posted in Tort Reform, Uncategorized.

Earlier this month I called BC’s Justice Reform Initiative ‘political theatre’ if Bill 44 and 52 passed before the government received Geoffrey Cowper’s final report. My opinion, unfortunately, has fallen on deafened ears as these bills have now gone through Committee and passed Third Reading.
Fortunatly for the those British Columbians unhappy that their right to a fair trial is being taken away when faced with a traffic dispute, you can point to MLA Kathy Corrigan’s comments from the House floor when challenging the Constitutionality of this legislation, where she declares that “The scheme would not survive a Charter challenge as so many personal rights and freedoms are being removed under the legislation“. (Click here for the link and scroll down to 1930 for the MLA’s comments).

Motorist with Right of Way Found 40% at Fault For Intersection Crash

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

UPDATE – June 12, 2013 -the below decisions addressing liability was upheld by the BC Court of Appeal.  The matter was set back to the trial judge, however, because the BCCA concluded the trial judge made a palpable error when assessing damages)
_____________________________________________________________
As discussed earlier this week, having the right of way is only one factor which determines fault for a collision.  A motorist with the right of way still needs to maintain a proper lookout otherwise they can share fault for a collision.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, in the context of an intersection crash.
In this week’s case (Sangha v. Chen) the Plaintiff was driving northbound on Willow Street in Vancouver, BC.  As he entered an intersection the Defendant, who was faced with a stop sign, came through a side street resulting in a collision.

Although the Plaintiff had the right of way both motorists were found at fault.  In assessing fault at a 60/40 split Madam Justice Boyd provided the following reasons:

[34]In the case at bar, I am satisfied that Chen stopped at the stop sign, that she moved forward to check for northbound traffic and that, finding there was none, she began to move out into the intersection.  Unfortunately from that point forward she simply proceeded forward in her slow course across the intersection, without keeping any continuing lookout for oncoming northbound traffic.  Chen did not, therefore, become the dominant driver.  While she stopped and yielded to traffic, she failed to proceed with caution.  This was also a breach of her common law duty to other users of the highways because she clearly failed to meet the standard of care as set out by Lambert J.A. in Carich v. Cook: “care should be taken throughout the turn and as each new lane is entered to make sure that the situation as it was assessed when the turn started has not changed in the meantime”.

[35]For his part, I am satisfied that the plaintiff was likely travelling over 30-40 kph, although perhaps still within the speed limit.  Contrary to his evidence, I find that at the last moment, he did (perhaps even unconsciously) see the defendant’s vehicle and did slam on the brakes momentarily (accounting for the initial jerking motion Dr. Temple experienced).  While he could not avoid hitting the defendant’s vehicle (which by this time was in his lane of traffic), his vehicle effectively came to a stop on impact, although rotating somewhat to the right in a counter-clockwise direction.

[36]While the plaintiff may have remained the dominant driver, he had a duty to exercise reasonable care even if those around him did not respect his dominant position.  He clearly did not exercise reasonable care as he failed to keep a proper lookout.  The fact the defendant proceeded slowly across the intersection and that the collision occurred on the far side of the intersection convince me he should have seen the plaintiff earlier.  Had he kept a proper lookout he would have seen her vehicle earlier than he did and thus could have applied his brakes to avoid the collision.  But he had not kept a proper lookout and the accident ensued.

[37]In determining the division of liability, the court is to consider the relative responsibilities of the parties for the accident: Salaam, para. 35-38.  This is not a case similar to Amador, Ryonand Salaam where one driver saw the other and made a decision to proceed in a certain manner, while the other driver failed to see them and keep clear.  Here, neither driver saw the other prior to impact when the circumstances are clear that they should have.  Liability must therefore be shared more evenly.  That being said, while both parties failed to keep a proper lookout, and failed to see what was there to be seen, the defendant, as the servient driver, had a higher standard of care and the plaintiff, to a certain extent, was permitted to expect servient drivers to respect his dominant position.  Thus the negligence of Chen contributed more to the accident than that of the plaintiff.

[38]In all the circumstances I find that the defendant is primarily liable for this collision.  In this case, I would divide liability 60% against the defendant and 40% against the plaintiff.

Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim

Written by admin on . Posted in BCSC Civil Rule 14, Uncategorized. 2 Comments on Photocopy Disbursements Allowed at $0.25 per Page in ICBC Claim


(Update October 2, 2012 – The below post was upheld on appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing reasonable photocopy expenses in a bill of disbursements.
In the recent case (Chow v. Nguyen) the parties could not agree to the reasonableness of various disbursements incurred in the prosecution of a personal injury claim.  In the course of the lawsuit the Plaintiff’s lawyer made 7,231 photocopies and claimed disbursements at $0.25 per copy.  ICBC argued this was unreasonable.  Master McDiarmid disagreed and allowed this disbursement as presented.  In doing so the Court provided the following reasons:

[4]Counsel for the defendant and third party also objected to the photocopy charges. She accepted plaintiff’s counsel’s representation that the 7,231 photocopies were in fact made. There was no argument that the photocopying was not necessary or proper; rather, the argument was that the 25¢ per page was excessive given the actual cost of photocopying. When assessing costs, a registrar must determine which disbursements have been necessarily or properly incurred in the conduct of the proceedings, and I must allow a reasonable amount for those disbursements (Rule 14-1(5) of the Supreme Court Civil Rules (the “Civil Rules”)).

[5]Pursuant to Rule 14-1(1) of the Civil Rules, I am to assess costs in accordance with Appendix B. Administrative Notice 5 effective July 1, 2010 directs that photocopying charges may be allowed at 25¢ per page on a party/party bill of costs. This amount is a guideline only. If it is shown that the actual cost was or should have been different from the guideline charges, the amounts allowed on an assessment may differ from the guideline amounts.

[6]The actual cost of photocopying is difficult to determine, in as much as it involves a combination of fixed costs, per page costs, and labour costs. There was no evidence before me to show what the actual cost was. I find that in the circumstances of this case, the number of photocopies was both necessary and proper, and I allow the photocopying charges as claimed in the amount of $1,807.75, plus applicable taxes.

This case is also worth reviewing for the Court’s discussion of document binding charges (dismissed as overhead) and the cost of fairly expensive expert reports which were allowed as being reasonable given the circumstanses of the case.

LVI Defence Rejected; Costs Awarded Despite Small Claims Quantum Judgement

Written by admin on . Posted in BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

In my continued effort to document judicial treatment of the LVI Defence, I summarize reasons for judgement released last week by the BC Supreme Court, Vancouver Registry, yet again addressing and rejecting submissions based on this defence.
In last week’s case (Johnson v. Keats) the Plaintiff was injured in a low-speed rear end crash in Burnaby, BC.  The collision resulted in little vehicle damage.  The Plaintiff sustained soft tissue injuries of a relatively minor nature and claimed damages.
At trial the Defendant argued that the injuries were not connected to this low velocity collision.  Madam Justice Wedge disagreed and found the Plaintiff proved his case and awarded $16,000 in non-pecuniary damages.  In dismissing the LVI Defence the Court provided the following reasons:

[24] The defendant argued that the plaintiff had not established causation between the accident and his alleged injuries. The gist of the defendant’s position on causation was that it did not follow that the plaintiff, a strapping young man in reasonable physical shape, could suffer the alleged soft tissue injuries from such a low velocity impact.

[25] The difficulty with this argument is that there is simply no evidence to support it. The defendant did not have the plaintiff examined by a physician or call any evidence to suggest that low velocity impacts could not cause the kind of soft tissue injuries that the plaintiff claimed to suffer as a result of the accident.

[26] Moreover, the defendant did not put that theory to Dr. Lim when she testified. It was not suggested in cross-examination of Dr. Lim that Mr. Johnson was malingering or exaggerating his injuries.

[27] The defendant attempted to attack the plaintiff’s credibility by pointing to what I can only describe as minuscule discrepancies in his evidence.

[28] The plaintiff was a credible and even a quite remarkably low-key witness. He did not attempt to exaggerate his symptoms. His evidence was straightforward and matter of fact. He readily acknowledged he was sufficiently recovered after three weeks to return to light duties and in slightly less than three months was fit to take on the more strenuous labouring tasks of a longshoreman.

[29] Dr. Lim, too, gave forthright and factual evidence. She did not attempt to advocate on her patient’s behalf.

[30] In summary, I am satisfied the accident of March 12, 2009, caused the soft tissue injuries described by the plaintiff and his physician Dr. Lim.

The global damages awarded were below $25,000.  Despite this the Court awarded the Plaintiff costs finding there was sufficient reason to bring the claim in Supreme Court.  In doing so the Court provided the following reasons:

…I am cognizant that the amount of the award falls within the jurisdiction of the Provincial Court. However, the case law establishes that if there is sufficient basis for the plaintiff’s proceeding in this Court, this Court has discretion to depart from the provisions of the Rules limiting costs.

[50] I have considered the issue of costs carefully given the range of non-pecuniary damages for injuries of the nature suffered by the plaintiff. It was reasonable for him to bring his claim in this Court. Accordingly, it is reasonable and fair that the plaintiff receive his costs pursuant to Rule 15-1.