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A Costly Reality: Unrecoverable Interest and "Litigation Loans"

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Pelvis Injury Cases, Uncategorized. 108 Comments on A Costly Reality: Unrecoverable Interest and "Litigation Loans"


In Canada there are several litigation loan companies in operation that provide financing for injured Plaintiffs.  In short they provide loans and use the plaintiff’s personal injury claim as collateral.  They charge interest for this service, sometimes this interest is incredibly steep.
Plaintiffs need to exercise great caution before taking on such high interest loans for the simple reason that the interest is likely not a recoverable damage in their personal injury lawsuit.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (Campbell v. Swetland) the Plaintiff sustained multiple injuries in a catastrophic motorcycle collision.  These included brain injury with cognitive impairment, an open book pelvic injury, incontinence and a host of other orthopaedic and soft tissue injuries.  The parties settled some issues before trial including non-pecuniary damages agreed at $290,000.
Prior to trial the Plaintiff borrowed funds from a litigation loan company.  By the time of trial the interest on these loans was over $42,000.  The Plaintiff sought to recover this interest.  Mr. Justice Wong concluded such a claim is not sustainable as it is too remote.  The Court provided the following reasons:

[91] The plaintiff in opening and closing submissions has claimed interest incurred on loans post accident in order to complete necessary renovations to her home and funds to cover her living expenses. She submitted that post accident, with her severe injuries, she was incapable of gainful employment. Her only source of income was a $900 monthly government disability cheque. Hence the loans from lending institutions with high rates of interest. The total interest now owing from two loans is now $42, 453.

[92] It should be noted the plaintiff’s claim for the cost of financing her loans is not pled in her Notice of Civil Claim.

[93] The Defendant submits that it is not a recoverable head of damage. It is not known to law, by virtue of remoteness, or it is a special damage; special damages have already been resolved by agreement of the parties…

[96] In employment law, interest paid on monies borrowed to cover personal expenses while in between jobs have been held not to be recoverable as special damages [Millman v. Leon’s Furniture Ltd. [1983], 83 CLLC 14,071 ((Ont. Co. Ct.) and Kozak v. Montreal Engineering Co. (1984), [1985] 2 WR 641 at page 647 (Alta. Q.B.)].

[97] Similarity, in contract law, losses arising from a plaintiff’s impecuniosity or lack of financial resources have been held not recoverable [Freedhoff v. Pomalift Industries (1971) 19 DLR 3d 153 at page 158 (Ont. C. A.)]…

[99] The Plaintiff spent the initial months post-accident in hospital, but her first lawyer arranged a $30,000 “litigation loan” on November 13, 2008. Of that $30,000, $3,000 was immediately paid as a “processing fee”. After 18 days, $600.00 of interest was already due and owing.

[100] The Defendant submits that the loan was a result of the Plaintiff’s pre-accident indebtedness, not any losses sustained by the Plaintiff as a result of any negligence by the Defendant. If they were, then such losses are too remote and were not reasonably foreseeable to the Defendant.

[101] If a person’s own impecuniosity is the cause of damage, then that damage is not recoverable [Roopam Fashions v. Greenwood Insurance and Broco (2008) BCPC 0254].

[102] The Defendant further submits that the Plaintiff has not reasonably mitigated her financial situation. She has not tried to sell off her classic and prize-winning Harley motorcycle, her exercise machine and the clay art remaining in her studio.

[103] The cost of litigation financing, while not a recoverable head of damage, may be a proper disbursement. However, the most recent law out of both British Columbia and Ontario is that claims for litigation loan financing and interest are not recoverable [MacKenzie v. Rogalasky, 2012 BCSC 156 and Giuliani v. Region of Halton, 2011 ONS C5119]. In Giuliani, Mr. Justice Murray commented that the loan which the Plaintiff had obtained from Lexfund Inc. was:

in effect a contingency arrangement which allows the lender to make huge profits from the proceeds of litigation rather than from a commercially normative interest rate on a risky loan. (para. 52)

and

I am in complete agreement with the submissions of Defendants’ counsel that: “this Court should not reward, sanction or encourage the use of such usurious litigation loans, which in this case has interest provisions that are arguably illegal, otherwise such loans will be seen to be judicially encouraged and could become a common-place tactic.” I agree that an award of interest in this case would likely have an adverse impact on other Defendants’ decisions to proceed to trial or to Appeal. I think the Defendants’ counsel is correct in stating that access to justice is a two-way street. As I have indicated above, to award interest as requested by the [Plaintiff’s counsel] would not facilitate access to justice and would undoubtedly bring the administration of justice into disrepute. (para. 59)

[104] I agree with defence counsels submissions on this head of claim and conclude that it is not recoverable.

$65,000 Non-Pecuniary Damage Assessment for Chronic Headaches and Soft Tissue Injuries

Written by admin on . Posted in ICBC Headache Cases, ICBC Spine Injury Cases, Uncategorized. 1 Comment on $65,000 Non-Pecuniary Damage Assessment for Chronic Headaches and Soft Tissue Injuries

Adding to this site’s archived posts of BC non-pecuniary damage assessments for chronic headaches, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this topic.
In last week’s case (Fell v. Morton) the Plaintiff was involved in a 2009 rear-end collision.  Fault was admitted by the rear motorist.  The Plaintiff suffered from pre-existing neck and upper back pain along with “headaches that were brought on by exertion“.  Following the crash she suffered soft tissue injuries to these regions along with a recurrence of frequent migraine headaches.   These aggravated symptoms continued to the time of trial and the prognosis for full recovery was poor.  In assessing non-pecuniary damages at $65,000 Madam Justice Fenlon provided the following reasons:

[23] Having considered all of the evidence, I find that Ms. Fell suffered soft tissue injuries to her upper neck and back as a result of the accident. I further find that those injuries triggered a recurrence of migraine headaches that had been almost entirely in remission since the birth of her first son.

[24] The migraines initially occurred twice per week, gradually decreasing to about once or twice each month by the time of trial. Ms. Fell’s headaches are debilitating, involving nausea and extreme sensitivity to light and sound. They sometimes last for two or three days, and all Ms. Fell can do is lie in a darkened room. She could not attend her wedding reception in Mexico in April 2010 because of a migraine headache…

[28] I find that prior to the accident Ms. Fell tended to suffer regularly from neck and upper back pain and headaches that were brought on by exertion. She sought regular massage therapy and chiropractic treatment in relation to those symptoms. She also had a proclivity to develop migraine headaches, and that condition meant she was susceptible to something else triggering her headaches in future.

[29] Ms. Fell should not be compensated for her pre?existing condition or the potential for it to reoccur quite apart from the injuries sustained in the motor vehicle accident…

[38] Ms. Fell is a stoic individual whose attitude in the face of life’s difficulties is to get on with it, in her words, “to suck it up”. She should not receive a lower award of non-pecuniary damages because of that stoicism. Indeed, to the contrary, it is appropriate to include under this head the suffering she endured while she pushed herself to keep working after the accident, despite her injuries.

[39] In summary, the injuries from the accident have affected all areas of Ms. Fell’s life. While she has periods of time when she is unaffected by her injuries, in particular when she avoids exertion, she has curtailed her recreational activities, no longer camping, exercising at the same level, or taking her dogs for on-leash walks with her husband. She has found it difficult to pick up her children and cannot interact with them when she has a migraine. However, as I have earlier noted, I must also take into account her pre?existing condition and proclivity to develop migraine headaches.

[40] Taking all of these considerations into account, I set non-pecuniary damages at $65,000.

Secret Tape Recording Deemed Admissible in BC Civil Lawsuit

Written by admin on . Posted in Civil Procedure, Uncategorized. 98 Comments on Secret Tape Recording Deemed Admissible in BC Civil Lawsuit


From time to time BC Courts struggle with the issue of whether evidence obtained through secret tape recording is admissible in a civil trial.  Reasons for judgement were published yesterday by the BC Supreme Court, Vancouver Registry, addressing this topic.
In yesterday’s case (Lam v. Chiu) the Plaintiff sued the Defendant for damages based on unjust enrichment.  Prior to trial the Plaintiff had a conversation with the Defendant that he secretly recorded.  In the course of the discussion the Defendant arguably acknowledged the alleged debt.
The Plaintiff sought to introduce the secret recording at trial.  The Defendant opposed arguing secretly recorded evidence is too prejudicial to be admitted at trial.  After thoroughly canvassing several authorities addressing this area of the law Madam Justice Gray found the evidence should be admitted.  In doing so the Court provided the following reasons:

[25] So I am going to summarize the law I have referred to by saying that there is a discretion in the court to exclude evidence where the prejudicial effect outweighs the probative value. There are cases where the court has commented on the practice of recording household conversations between family members and described that as odious. The court has also referred to illegal tape-recording, that is, tape-recordings when no party to the conversation had consented to it being recorded.

[26] The case before me is not a family case. It is not a case where custody is in issue and it is not a case where the recording took place in the household of a family. The recording, in fact, took place primarily on the street outside Ms. Chiu’s workplace. It is not a case where there is an ongoing relationship of trust between parents.

[27] This is a situation where the relationship between Mr. Lam and Ms. Chiu has broken down, and there is no need for them to have an ongoing relationship except to resolve the lawsuit before me. It is not a case of a large volume of material. It is a case of one recording. It is not a case where the recording is being put forward to show a general practice of how someone interacts with their children as in the Seddon case. It is a case where there is an allegation about a narrow point, that is, discussion about the existence of a loan.

[28] I will summarize the factors in this case as follows. First, with respect to probative value, I will say that I have to refer to it for the purposes of considering admissibility and, at this stage, I am not weighing the evidence or making any comment about what weight, if any, should be given to the evidence. In my view, there may be some probative value to the tape-recording. There is some concern about the statement by Ms. Chiu, that, “But I tell you, you want to have the $100,000. No way because you treat me like that. That’s pay for it.”  There may also be other utterances by Ms. Chiu giving rise to concern, but that is the one that is most prominent, in my view.

[29] I also consider the probative value in contrast with what the situation would be if the recording is not admitted. Mr. Lam could testify that he met with Ms. Chiu, demanded the payment of the loan, that she did not deny that it was owing, and she said she had no intention of repaying it. That summary might well be accurate, but it would not give the full flavour of the conversation which is available from considering the recording and the transcript. So there is some probative value to having the full conversation reported as accurately as it can be.

[30] In terms of prejudice, there clearly is unfairness when one party knows that a conversation is being tape-recorded and the other party does not. That is clear on the evidence and can be taken into account on considering what, if any, weight the evidence ought to be given. Mr. McMillan argued that the context was prejudicial. However, Ms. Chiu can supply any more evidence she chooses about the context of the discussion including any other background and any other concerns about the language.

[31] The matter which gave me the greatest concern was the question of the impact on the administration of justice of permitting the admission into evidence of a surreptitious recording. I am not sure that I can characterize this surreptitious recording as odious. That was a term used by Mr. Justice Thackray and embraced by other judges, but when they were referring to recordings in a home with an ongoing parental relationship and, as I have said, that does not apply here. Whether it is odious or not, the recording was certainly unfair. It is not criminal because Mr. Lam knew the recording was being made. As I have said, the recording was staged and therefore unfair, but that is apparent from the recording.

[32] This is a not a clear case. In my view, there is some probative value to admitting the full recording, and the concerns about prejudice are not sufficiently significant that the recording should be excluded from evidence, primarily because any concerns about them are clear on the recording itself.

[33] So my ruling on the voir dire is that the recording is admissible.

$60,000 Non-Pecuniary Damages for Moderate, Chronic Soft Tissue Injuries

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries caused by multiple collisions.

In last week’s case (Tait v. Dumansky) the Plaintiff was involved in three consecutive collisions. Ultimately the various Defendants admitted liability or were found liable at trial.  The 42 year old Plaintiff suffered soft tissue injuries to his neck, shoulder and back in the collisions.  These injuries remained symptomatic at the time of trial and were expected to continue in the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Gerow provided the following reasons:

[37] In this case, all of the medical evidence is that Mr. Tait has suffered a moderate soft tissue injuries to his neck, shoulder and back. Although Mr. Tait’s symptoms have not completely resolved, and he still experiences flare-ups when he overexerts himself physically, the consensus amongst the medical experts is that Mr. Tait will likely have further improvement.

[38] Dr. Arthur, the defendants’ expert, opined on March 17, 2010, that Mr. Tait is partially disabled at this point, but should be able to get back to full duty and full hours. At trial, Dr. Arthur said he was of the opinion at that time that Mr. Tait should have been able to get back to full time duties in two to four months after he examined him if he carried out an active rehabilitation program. In cross-examination he explained that did not mean Mr. Tait would not have ongoing complaints after two to four months.

[39] Dr. Birch, Mr. Tait’s family doctor, provided an expert report and testified. In his report of July 25, 2011, Dr. Birch diagnosed Mr. Tait with muscle tension headaches and neck, shoulder, upper, mid and low back sprain and strain with significant muscle spasm. The injuries were caused by the 2007 accident and aggravated by the accidents in 2009 and 2010.  As of July 23, 2011, Mr. Tait was noted to be tender to palpation in both shoulders, upper, mid and low back bilaterally with some intermittent pain radiating down his right leg. The range of motion in Mr. Tait’s neck and low back were both moderately restricted in all directions. Although Dr. Birch expected some further improvement of Mr. Tait’s symptoms, his prognosis for full recovery is poor because of the number of injuries impacting the same area…

[46] In my view, the evidence establishes that Mr. Tait is suffering from ongoing symptoms of headaches, neck, shoulder and back pain as a result of the motor vehicle accidents. The evidence is that there has been ongoing improvement, with occasional flare-ups due to physical exertion, and that there should be additional improvement…

[51] Having considered the extent of the injuries, the fact that the symptoms are ongoing for four years with some improvement but with periods of exacerbation, the fact that the prognosis for full recovery is somewhat guarded, as well as the authorities I was provided, I am of the view that the appropriate award for non?pecuniary damages is $60,000.


"I'm Going To Sue You" Probably Not the Best Thing to Yell After a Crash

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 48 Comments on "I'm Going To Sue You" Probably Not the Best Thing to Yell After a Crash


If the first thing out of a person’s mouth following a fender bender is “I’m going to sue” that likely won’t reflect all that well in a subsequent lawsuit.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the issue of credibility and claims consciousness after such an utterance was made.
In this week’s case (Hussainyar v. Miller) the Plaintiff was involved in a 2009 collision.  It was a relatively minor accident.  He suffered legitimate injuries and ultimately was awarded damages.  Prior to doing so, however, the court had some critical comments to make about the Plaintiff’s credibility which were made in part due to his post collision behaviour.
Immediately following the crash the Plaintiff and his passenger exited the vehicle, walked towards the defendant and “yelled at her that they were injured and it was her fault and they were going to take her to court“.
Madam Justice Allan provided the following comments about the Plaintiff’s credibility:
[34] Mr. Hussainyar denied making an angry outburst at the scene of the accident that he and his girlfriend were injured and that it was the defendant’s fault and he would take her to court. I have no hesitation accepting Ms. Miller’s evidence that it occurred. That incident, illustrating the plaintiff’s focus on compensation, forms the context for an examination of Mr. Hussainyar’s credibility.  He was dishonest with Dr. Cimolai, Dr. Chu, and Mr. Brancati when he told them that his employer had gone out of business and omitted to tell them that he had been working part time for months.  I do not accept his evidence that he attended the gym on more occasions than his scanned entry card indicated.  Although he told Dr. Chu he could perform household chores, he testified that was a continuing problem.  Dr. Turnbull noted that the plaintiff’s range of motion was better when he was distracted…

Court Finds "LVI" Evidence Relevant But Not a Significant Consideration

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized. 1 Comment on Court Finds "LVI" Evidence Relevant But Not a Significant Consideration

In keeping with the ongoing trend of judicial criticism of ICBC’s ‘low velocity impact‘ defence (you can click here to access dozens of my archived posts detailing this) reasons for judgement were released earlier this week by the BC Supreme Court, New Westminster Registry, confirming that while defendants are free to put evidence of minimal vehicle damage before the court, it likely is not a significant consideration.
In this week’s case (Gron v. Brown) the Plaintiff was involved in two rear-end collisions, the first in 2003, the second in 2008.  ICBC admitted fault on behalf of the rear drivers.  Both collisions were low velocity impacts.  ICBC stressed this evidence at trial.  Mr. Justice Brown found that despite the low impact of the crashes the Plaintiff did suffer injury.  The Court awarded $24,000 in non-pecuniary damages and provided the following practical critique of low velocity impact evidence:

[10] The defendants called two ICBC estimators, Mr. J. Hansen and Mr. J. Gali. Following the May 31, 2008 accident, they examined damage to the plaintiff’s Toyota Yaris and Mr. Godwin’s Oldsmobile Cutlass Ciera.

[11] Mr. Hansen, who examined the Yaris, noticed some minor damage on the Yaris’s bumper cover and slight sheet metal distortion on the Yaris’s trunk lid.

[12] Mr. Gali, who examined the Oldsmobile, found minor damage to the strip moulding on its bumper. Mr. Godwin did not want to have it repaired.

[13] Neither estimator looked under the bumpers for damage, which, they granted, possibly could have been present.

[14] Low velocity impacts are common. Defendants often question the relationship between minimal vehicular damage and physical injuries claimed after low velocity impacts. In the case at bar, neither of the estimators ventured an opinion on the inherent potential for injury from the minimal physical damage they found after examining the vehicles nor claimed the expertise to do so, but as noted by Vickers J. at para. 15 in Kirsebom v. Russell, [1995] B.C.J. No. 359 (S.C.), the defendants are “entitled to argue in this or any other case that, because there has not been motor vehicle damage, there can be no injury.”

[15] Barrow J. endorsed this view in Makara v. Weihmann, 2005 BCSC 1757, where he said at para. 7:

[7]        I share this view. It follows that the extent of the damages to motor vehicles involved in a collision may well be relevant notwithstanding an admission of liability where the remaining issues make it so. In this case, the issues include whether the plaintiff suffered the injuries complained of in the accident or elsewhere. They include an assessment of the extent of the injuries generally. The nature of the collision is a relevant consideration in resolving these matters. It may not be a significant consideration, but it remains a relevant one. …

More on the Reality of Insurance and Costs Consequences Following Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.


Update March 21, 2014 – the Trial Judgement with respect to the relevance of insurance and costs was upheld today by the BC Court of Appeal
_____________________________________________________
In 2010 the BC Court of Appeal confirmed that Judges can look at insurance when considering the “financial circumstances” of litigants when addressing costs consequences following trials where a formal settlement offer was made.  Further reasons were released last week by the BC Supreme Court, Victoria Registry, confirming that costs consequences should not be applied with the ‘fiction‘ of ignoring insurance.
In last week’s case (Meghji v. Lee) the Plaintiff suffered brain trauma after being struck by a motorist while walking in a marked cross-walk in 2003. At trial the motorist was found 90% at fault for the crash with the Ministry of Transportation shouldering the remaining 10% for designing the intersection with inadequate lighting.
Prior to trial the Plaintiff offered to settle for $750,000.  Neither Defendant accepted.  Damages at trial were assessed at just over $1.1 Million with the Defendants being jointly and severally liable.  The Plaintiff sought and was awarded double costs from the time of her offer onward.  In doing so Mr. Justice Johnston provided the following useful reasons addressing the reality of insurance and the risks of joint and several liability:

[33]Also relevant to consider is the fact that a well-funded party, such as MoTH,  faces higher risk with joint liability when other potentially liable parties have less means or no means with which to satisfy a possible judgment. In such circumstances, the well-heeled party may end up paying more than its proportionate share to the plaintiff if or when the impecunious party exhausts its ability to pay.

[34]This risk is balanced by the potential that the plaintiff might be held partly to blame for her losses, which would confine the well-funded party’s liability to its proportionate share of the loss through several liability: Leischner (Next friend of) v. West Kootenay Power, [1982] B.C.J. No. 1641…

[40]Quite apart from the fact that I am bound by the decision in Smith v. Tedford, its reasoning eliminates one fiction that ought not to complicate proceedings before a judge alone. That fiction is that there is no plan of universal compulsory automobile insurance in effect in British Columbia, mandated by statute, where the details of the coverage available are found in statute and regulation. If judges and others are presumed to know the law, there is little sense in requiring that judges ignore what the law provides when dealing with costs.

$65,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injuries

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

Reasons for judgement were released yesterday by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries following a motor vehicle collision.
In yesterday’s case (Miller v. Lawlor) the 24 year old Plaintiff was involved in a ‘violent‘ rear-end collision in 2009.  Fault was admitted by the rear motorist.  The Plaintiff suffered soft tissue injuries to his shoulder, neck and back which continued to cause problems in heavier employment and recreational tasks.  The limitations were likely going to be permanent.  In assessing non-pecuniary damages at $65,000 Mr. Justice MacKenzie provided the following reasons:

[100] I agree with the plaintiff that the medical opinions have not been seriously challenged by the defendant.

[101] These expert opinions, coupled with the evidence of the plaintiff and his father and co?workers, substantiate the plaintiff’s claim that he probably suffers from a permanent partial disability that still causes discomfort and pain mostly when he is engaged in strenuous above-the-shoulder tasks and bending over in restricted areas at work…

[110] In this case, the medical evidence is consistent in concluding that the plaintiff suffers from chronic pain and discomfort in varying degrees. I accept that his quality of life has clearly been diminished. The accident affected his ability to help at home with heavier chores such as chopping wood. He now curtails his surfing. He has become so cautious with respect to snowboarding that he does not do it at all.

[111] The plaintiff testified he continues to suffer sporadic pain and discomfort from the injuries he suffered because of the accident. I accept his evidence. I agree with Mr. McIver that the plaintiff has chronic soft-tissue symptoms that, according to the medical opinions, are likely to persist. They have continued for over three years and have affected his overall lifestyle as well as his ability to fully function at work. According to Dr. Adrian “’the prognosis for further recovery … over time is poor.” Unlike some, this plaintiff has not made numerous trips to a chiropractor or physiotherapist or massage therapist. I am satisfied this is because of his stoic personality coupled with the advice he has received from the medical personnel that his exercise regime is now the best thing he can do to minimize his symptoms. The infrequency of massage and chiropractic sessions should not be held against him.

[112] Taking into account the totality of the evidence and the authorities presented by both counsel, I am satisfied that an appropriate award of non-pecuniary damages here is $65,000.

Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 55 Comments on Emergency Driver Found Fully at Fault for Intersection Crash; Abuse of Process Discussed


The BC Motor Vehicle Act provides the RCMP and other drivers of ‘emergency vehicles‘ the right to speed and run red lights and stop signs.  This right, however, is not absolute and cannot be exercised without care to other motorists.   If an emergency vehicle operator is careless in the exercise of their emergency powers they can be liable for a resulting collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In today’s case (Haczewski v. British Columbia) the Plaintiff was killed in a 2007 motor vehicle collision.  His vehicle was struck in an intersection.  He entered on a green light.  At the same time an RCMP vehicle was approaching with “her emergency lights and siren” on.  She entered against the red light at high speed and the collision occurred.
At trial the Defendant agreed she was careless and contributed to the collision but argued the Plaintiff was also partly to blame.  Mr. Justice Grauer rejected this argument and found the Defendant fully at fault.  In doing so the Court provided the following reasons:

[12] No statute need be cited for the general proposition that a vehicle entering a controlled intersection with a green light has the right-of-way over vehicles facing the red light.  But is this still the case when the vehicle with the red light is a police car responding to an emergency with its lights flashing and siren sounding?  The answer is:  it depends.

[13] The Motor Vehicle Act provides certain privileges to emergency vehicles, including the limited right to proceed through a red light without stopping:…

[14] The use of those privileges is governed by the Motor Vehicle Act Emergency Vehicle Driving Regulation, B.C. Reg. 133/98…

[16] Thus the statutory privileges granted by the Motor Vehicle Act’s section 122 exemption are subject always to balancing the exigencies of the emergency with the risk of harm arising from the operation of the vehicle.  In particular, the driver of any emergency vehicle exercising those privileges who approaches or enters an intersection must slow to a speed consistent with reasonable care.

[17] The Motor Vehicle Act deals further with right-of-way in section 177:

177 On the immediate approach of an emergency vehicle giving an audible signal by a bell, siren or exhaust whistle, and showing a visible flashing red light, except when otherwise directed by a peace officer, a driver must yield the right of way, and immediately drive to a position parallel to and as close as possible to the nearest edge or curb of the roadway, clear of an intersection, and stop and remain in that position until the emergency vehicle has passed…

[22] An article included as an appendix to the manual, entitled Rules of the Road: Some Perspectives on Emergency Driving, contained this recommendation:

8.         Come to a complete stop at all controlled intersections (e.g. red lights, stop signs) where you would not have the right-of-way without warning equipment.

Most accidents of any kind, but especially those involving emergency vehicles on emergency calls, occur at intersections.  The practice of stopping at intersections has not appreciably hurt my agency’s response times, although it has caused some shortening of brake life.  But faithful adherence to it has resulted in countless instances in which vehicles would otherwise have been broadsided by motorists who either insisted on their right-of-way or did not perceive the warning equipment.

[23] As a result of this accident, this recommendation has, as I understand it, now become RCMP policy.  At the time of the accident, the policy for an officer approaching a controlled intersection was to slow sufficiently, and to stop if necessary, in order to ensure that it was safe to proceed through the intersection, consistent with section 6 of the Regulation…

[46] On all of the evidence, I have no difficulty in concluding that Constable Kostiuk failed to exercise the degree of care required of a reasonable police officer, acting reasonably and within the statutory powers imposed upon her, in the circumstances she faced that night (see Doern v. Philips Estate (1994), 2 B.C.L.R. (3d) 349 (S.C.) at para. 69, aff’d (1997), 43 B.C.L.R. (3d) 53 (C.A.)).

[47] As she headed up Kingsway in response to what she reasonably believed to be an emergency, Constable Kostiuk significantly exceeded the speed limit.  On a quiet night with little traffic, that was justified.  But circumstances changed when she approached the intersection with Royal Oak, a main street, facing a red light.  She was not familiar with the intersection, and visibility was limited.  She ought not to have entered it against the red light without first taking adequate steps to ensure that she could do so safely.  She failed to do so.  Reasonable care required her to slow right down before proceeding into that intersection, in order to ensure that it was in fact clear, and that she could enter it without risk of harm to the public.  Instead, she accelerated into the intersection from what was already a high speed.  In those circumstances, it was impossible for her to have any confidence that she could proceed safely, and the collision was the result.  Such action was in no way justified by the exigencies of the emergency to which she was reacting.

In addition to the above, this decison is also worth reviewing for the application of the ‘abuse of process’ doctrine following a motor vehicle act conviction.

In today’s case the RCMP officer was charged criminally with dangerous driving causing death.  She eventually plead guilty to careless driving under the motor vehicle act.  The Plaintiff argued it was an abuse of process to dispute civil liability in these circumstances.  Mr. Justice Grauer disagreed and provided reasons at paragraphs 154-160 setting out his view of why a guilty plea to careless driving should not be an absolute barrier to subsequently denying civil liability.  It is worth noting there is some inconsistency in this area of the law.

Plaintiff Struck by Fleeing Shoplifter Found Faultless for Collision

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a crash when a Plaintiff was struck by a fleeing shoplifter.
In last week’s case (Bhadlawala v. Baxter) the Plaintiff was involved in a 2008 collision.  At the time he was 64 years old and was a long time employee at Zellers.  He observed an individual shoplifting and followed him into the parking lot.  The shoplifter entered a van.  The Plaintiff stood behind the van, about one vehicle length away, and attempted to write down the licence plate.  The vehicle then suddenly backed up and struck the Plaintiff causing injury.
ICBC argued the Plaintiff should be found 25% at fault for placing himself in harm’s way.  Madam Justice Gray rejected this argument and found the motorist fully at fault.  In doing so the Court provided the following reasons:
[85] Regarding the 2008 accident, ICBC argued that Mr. Bhadlawala was negligent in placing himself behind the van in the parking lot, and that he thereby contributed to the accident. ICBC argued that Mr. Bhadlawala ought to have known that the van was going to back up, and should not have stood behind it. ICBC argued that Mr. Bhadlawala should be held 25% contributorily negligent for the 2008 accident, and that his damages award should be reduced accordingly…

[93] The defence argued that Mr. Bhadlawala should not have pursued the shoplifter. However, the accident was not the result of pursuing the shoplifter. It was the result of the van striking Mr. Bhadlawala in the parking lot.

[94] The shoplifter was in the van. The evidence did not establish whether the shoplifter was the driver or a passenger in the van. The driver of the van probably wanted to avoid anyone noting the van’s license number. It was reasonable for Mr. Bhadlawala to have anticipated that the van might have backed up.

[95] However, the risk of being caught shoplifting is far less significant than the risk of being caught striking a pedestrian with a vehicle.

[96] It was not reasonably foreseeable that the driver of the van would reverse so quickly that Mr. Bhadlawala could not move out of the way in time to avoid being struck. Mr. Bhadlawala was standing over a van length behind the van, which would have given him ample time to get out of the way if the van had moved at a reasonable speed…

[101] As a result, Mr. Robert is entirely responsible for the 2008 accident.

Another useful case addressing this issue can be found here where the BC Court of Appeal found ICBC’s arguments in a similar situation were ‘doomed to failure‘.