Skip to main content

Tag: bc injury law

More on the Broad Scope of Examination for Discovery

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

As previously discussed, BC Courts take a broad view of relevance when it comes to examination for discovery.  Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, further addressing this topic.
In the recent case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He was operating a motorcycle with a side-car when he was injured. He sued the manufacturer and other parties.  At the Defendant’s discovery the Plaintiff wished to canvass standards the Defendant had for two wheeled motorcycles (ie- motorcycles without a side-car).  The Defendant objected arguing these questions are not relevant because a motorcycle with a side-car is a “discrete three-wheeled vehicle with handling characteristics not shared by a two-wheeled vehicle.”
The Plaintiff brought application compelling answers to the contentious questions.  Mr. Justice Cullen granted the application and in doing so provided the following reasons confirming the broader scope of relevance at the discovery stage:

[10] The parties agree that the operative rule is Rule 7-2(18)(a) which reads as follows:

(18)      Unless the court otherwise orders, a person being examined for discovery

(a)        must answer any question within his or her knowledge or means of knowledge regarding any matter, not privileged, relating to a matter in question in the action ….

[11] The plaintiff takes the position that it is the pleadings which determine the issues and hence the question of relevance citing the decision of the British Columbia Court of Appeal inCominco Ltd. v. Westinghouse Canada Ltd., [1979] B.C.J. No. 1963.

[12] The plaintiff says the Court on an application such as this ought not to consider evidence in rendering a decision as to do so prejudges the effect of the examination for discovery and usurps the role of the trial judge.

[13] The defendant on the other hand says the only way to determine relevance within the meaning of the Rule is to consider what the available evidence is likely to establish. The defendant says if I consider the evidence of its expert it will establish that the questions concerning the characteristics of a two-wheeled vehicle are simply not relevant to the characteristics of a three-wheeled vehicle and should not be permitted under the Rule.

[14] The plaintiff on the other hand submits that even if I do consider the evidence the question is simply not so clear cut that I could make a determination without effectively usurping the role of a trial judge.

[15] As I see it, this is not a case where it could be said that on the pleadings there is no relevance to the questions being posed. As Seaton J.A. pointed out in West Coast Transmission:

It is not appropriate to plead evidence and the information respecting these other cables is essentially evidence from which the Court will be asked to conclude that the defendants knew or ought to have known of a danger. The respondents relied upon an affidavit to the effect that evidence of non-tech cable would not be a guide to the propensities of tech cable. The respondents refused to answer questions on that subject. I do not think it appropriate to conclude on affidavit evidence that a proposition is unsound and exclude the area from the examination. That is what was done here. It was said then that before there could be examination with respect to cable other than tech cable the appellant would have to establish that the other cable was similar. I know of no procedure whereby a party can prove an aspect of his case before discovery. The decision on similarity ought to be made at trial, not before trial, and particularly not before discovery.

[16] In my view, on that basis the order sought should go. If I am wrong in that however, I am still not satisfied having considered the evidence put before me that there is not some relevance to the questions being posed. There is a difference between the views of the experts as to the possible cause of the accident and whether it resides exclusively in the characteristics of the vehicle as a three-wheeled vehicle or whether it has its source in the component parts of the two-wheeled vehicle. And that is a question essentially for the trial judge.

[17] In his affidavit of December 12, 2011, the plaintiff’s expert deposes as follows in para. 6:

6.         The steering assembly of the Harley-Davidson motorcycle sidecar is identical to that found on the solo motorcycle. The underlying steering assembly response of the base solo motorcycle will behave in the same manner as that same unit will respond when attached to the motorcycle sidecar. This is because they are exactly identical mechanical devices. What will be different is the level of the response of the solo motorcycle vehicle compared to the level of response of the motorcycle sidecar vehicle and the path each vehicle takes due to shaking (oscillations) of the steering assembly once that shaking is initiated.

[18] While I do not in any way wish to be taken as resolving the issue which undoubtedly is a very complex one, I am simply not able to say that the characteristics of some components of the two-wheeled vehicle as revealed by the questions posed may not be germane to the effect upon the three-wheeled vehicle at issue in this lawsuit and, accordingly, for those reasons, I will grant the application of the plaintiff.

The Point of No Return: More on ICBC Settlements, Finality And Consent

Written by admin on . Posted in Settlement Law.


As previously discussed (you can click here to read all my archived posts on this topic), a binding ICBC settlement can be reached even before the ‘full and final release’ is signed.  An oral contract can be the point of no return.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating that once a lawyer accepts a settlement offer on behalf of a client it likely becomes too late for the client to change their mind.
In last week’s case (Truong v. Marples) the Plaintiff was injured in a motor vehicle collision.  She hired a lawyer to advance her personal injury claim.  In the course of the lawsuit ICBC’s and the Plaintiff’s lawyer agreed to a $10,000 settlement.
The Plaintiff agreed her lawyer had authority to accept the offer but argued the deal should not be binding as the offer was ambiguous as it should not have disposed of her no-fault benefits claim with ICBC.  The Court disagreed finding that a binding settlement was reached.  In doing so the Court provided the following reasons:

[20] In terms of ambiguity, I find that there was no ambiguity in the settlement.  The settlement was agreed to between Mr. Grewal and Mr. Shane and they both state that there was no ambiguity and agree on what the deal was.  Their evidence, which was not shaken at the hearing, was that they reached a settlement of all issues, including those regarding tort and Part 7 benefits.

[21] Mr. Shane and Mr. Grewal had a history of working on the opposite sides of files.  It is apparent that the two have developed experience with each other.  Mr. Shane’s testimony also indicates that he has a direct working relationship with the Burnaby litigation department of ICBC, and that an “all in” settlement always meant that it included the tort claim and Part 7 benefits.  He displayed a sound understanding of Part 7 benefits and how they interact with a person’s private health insurance.  He stated that if a settlement did not include Part 7 benefits it was his practice to note that.  I accept his evidence on this point.

[22] The Release document sent by ICBC to Mr. Shane supports the settlement asserted by Mr. Grewal and Mr. Shane.  The document states that it is a release of all defendants, and ICBC under Part 7 of the Insurance (Vehicle) Regulation.  Mr. Shane reviewed this document, obviously found it satisfactory, and passed it on to Ms. Truong for her execution.

[23] I also accept Mr. Shane’s evidence that he always makes sure that his clients understand that the figures being proposed to settle include all potential entitlements they have from their claim which include the tort and Part 7 entitlements.  I also accept that he advised Ms. Truong, as per his practice, that prior to confirming any settlement figure with ICBC, that she would need to sign a Release, that this was not optional, or is something that she could refuse to do, and that their claim would be over.

[24] I am not persuaded that the Sharma case is particularly applicable here, given that both counsel involved in the settlement in the instant case agree as to what was settled

[25] Turning then to the question of whether the settlement was unjust and should not be sanctioned.  I have considered the various factors identified in the Pastoor case.  I am not persuaded that the circumstances justify intervention by the court.  Ms. Truong was represented by experienced counsel.  Mr. Shane provided her his opinion based on the information that he had at the time.  He knew that Ms. Truong had private health insurance, he formed a considered opinion that she had little chance of success on liability and the costs of pursuing that aspect, he had a sound understanding of Part 7 benefits, and he discussed that with Ms. Truong.  There was little evidence adduced as to what it would be in the case of Ms. Truong.  Mr. Shane in this hearing stated that it could be thousands of dollars.  Finally, he also received instructions to accept the offer.

[26] I am of the view that interfering with this settlement would do greater harm to encouraging settlement.  It would undermine the role of counsel in relation to a client, in relation to opposing counsel, and in the litigation process.

[27] The issues raised by Ms. Truong are, in my view, related to her relationship with Mr. Shane and not with the defendant.  Her remedy does not lie in having the settlement overturned.

I repeat my previous words of caution about settlement instructions.  If a lawyer enters into a binding settlement without a client’s consent the client’s remedy is against their lawyer as opposed to the Defendant in the ICBC Claim.  In the best interests of everyone involved it is vital that lawyers do not accept an ICBC settlement offer unless they have clear instructions from their clients to do so.  A best practice when giving settlement instructions to a lawyer is to do so in writing to help avoid potential complications.

Sometimes You Really Do Have to Sue Your Mother

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


Paul Hergott wrote a newspaper column a few years ago titled ‘sometimes you have to sue your mother‘.   Family members suing each other for compensation is more common than you may think, particularly in the context of ICBC claims.
When a motorist drives carelessly and causes injury the injured parties can sue for compensation.  ICBC’s Third Party Liability coverage typically covers these claims, even if the injured party is a relative of the at fault driver.  Reasons for judgment were released today by the BC Supreme Court, Kamloops Registry, demonstrating this reality.
In today’s case (Carson v. Henyecz) the Plaintiff was walking on her mother’s property.  She tripped and “stumbled forward bent at the waist into the middle of the asphalt driveway.“ At the same time her mother was backing up out of her driveway.  She failed to see her daughter and a collision occurred.  The Plaintiff suffered serious injuries including a fractured spine which required titanium rods and a bone graft for correction.
The Plaintiff sought compensation for her injuries from her mom’s insurer.  ICBC denied the issue of fault and forced the matter to trial.  Ultimately the Court found the Plaintiff’s mom 100% responsible for the collision.  In doing so Madam Justice Hyslop provided the following reasons:

[101] Looking at the photographs of the asphalt driveway (no measurements were taken as to its width or length), the Subaru struck Ms. Carson in the lower part of the upper half of the driveway. Mrs. Henyecz had an obligation throughout this entire manoeuvre; that is reversing down this long driveway, to be aware of what was behind her. Her obligation was to place her body in such a position that she would observe out of the rear-view window, her driver’s rear-view mirror and driver’s side mirror, the asphalt driveway until such a time that she would reach Singh Street, enter Singh Street, and then change direction.

[102] I infer from all of the evidence that Ms. Carson was visible before she stumbled and she certainly was visible when she stumbled onto the asphalt driveway. From all of the evidence that is before me, I conclude that as Mrs. Henyecz commenced reversing the Subaru down the asphalt driveway, she took no steps to determine whether she could reverse the Subaru down the driveway in safety.

[103] I conclude that had Mrs. Henyecz taken the precautions as she started her reversal and continued her reversal down the asphalt driveway, Mrs. Henyecz would have seen her daughter both before and after her daughter stumbled into the asphalt driveway.

[104] I find that Mrs. Henyecz breached her duty of care to Ms. Carson by failing to make all the observations that she could perform as she reversed down the asphalt driveway. Ms. Carson was out on the driveway to be seen.

[105] I conclude that Mrs. Henyecz was not driving at an excessive speed. The speed of the vehicle is not the issue here.

[106] Mrs. Henyecz alleges that Ms. Carson was negligent in that she stumbled. Ms. Carson’s stumble is not material. Ms. Carson’s stumble is not the cause of the accident. The cause of the accident is the failure of Mrs. Henyecz to position herself and make observations in such a way that as she reversed she was aware of what was on the asphalt driveway.

[107] The defence made reference to Rinta and the facts of that case. Counsel for Mrs. Henyecz suggested that these facts gave the driver a great deal more warning compared to the facts in this case. However, in the appeal court it is not the facts that are being appealed, it is as Mr. Justice Lambert said:

[8] … The Supreme Court of Canada said that it was improper for this court to interfere with a finding of negligence or no negligence made by a trial judge unless there was an error in law, or it was clear that some evidence had not been understood or had been ignored. …

[108] I have already concluded in my analysis of the law that this is not a situation where a pedestrian must not leave the curb or a place of safety and walk or run into the path of a vehicle so that it is impracticable for the driver to yield the right-of-way. If s. 179 of the MVA applied to private property, I conclude that it is not relevant as under s. 179 the driver of the motor vehicle is driving forward and not in reverse.

[109] I conclude that Mrs. Henyecz breached her duty to Ms. Carson and was negligent when she reversed her motor vehicle down the asphalt driveway and hit Ms. Carson. I find Mrs. Henyecz is 100% responsible for the accident.

Oiled Stripper Loses Slip and Fall Lawsuit

Written by admin on . Posted in Occupier's liability claims, Uncategorized. 46 Comments on Oiled Stripper Loses Slip and Fall Lawsuit

Reasons for judgement were released yesterday by the BC Supreme Court, Chilliwack Registry, dismissing a personal injury lawsuit following a slip and fall.
In yesterday’s case (Newsham v. Canwest Trade Shows Inc.) the Plaintiff, a male stripper, slipped and allegedly injured his knee while performing at the Naughty but Nice Sex Show.  The Plaintiff sued for damages alleging he slipped due to an “oily substance on the stage floor“.  Mr. Justice Brown ultimately dismissed the claim.  In doing so the Court noted the oily substance was possibly baby oil the Plaintiff used in his own performance.  Mr. Justice Brown provided the following reasons:

148] With respect to the negligence claim, I find the following:

a)       The plaintiff has failed to prove the defendant breached any duty of care it owed to the plaintiff under the Occupiers Liability Act or at common law:

i.        The evidence, considered as a whole, falls short of proving on a balance of probabilities that a hazardous substance was present on the stage at the material time and was responsible for the plaintiff’s slip.

ii.        Even if the plaintiff had established that a slippery substance was the cause of his slip, it is equally likely that the slippery substance in question was residue of baby oil the plaintiff used for his performance as it was body paint left from an earlier performance on the stage.

iii.       Moreover, it is also possible that the slip was caused by the plaintiff’s prior knee injury and thus independent of any slippery substance.

iv.       Even if the plaintiff had successfully identified a slippery substance as the cause of his slip, particularly the body paint from a prior performance, he still failed to establish that its presence was caused by the failure of the defendant to provide a reasonably safe environment in which he would perform.

b)       Even if the plaintiff had succeeded in proving the defendant breached its duty of care, he would have still failed to prove the defendant’s negligence as the cause of the injury he sustained, which I find the evidence, considered as a whole, shows was just as likely precipitated by the prior condition in his right knee as by the presence of a slippery substance on which he may have slipped during his performance.

c)       I find it equally likely that any slip and resulting injury the plaintiff experienced related to the nature of his performance and the condition of his knee at the time of the performance as to the presence of a hazardous substance on the stage.

The "Shoehorn" Prohibition To Responsive Defence Medical Exam Requests

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized.

(Image via wikipedia)
One rule that has perhaps received more attention than other in recent years is Rule 11-6(4) in the context of Responsive Medical Exams.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this topic and coining the “shoehorn” prohibition to responsive independent medical exams.
In this weeks’ case (Turnbull v. Tarnohammadi) the Plaintiff was injured in a motor vehicle collision.  In the course of the lawsuit the Plaintiff was assessed by Dr. Salvian who expressed concern that the Plaintiff suffered from Thoracic Outlet Syndrome.  His records were exchanged in the litigation process.  As the expert evidence deadline neared the Plaintiff served a proper expert report setting out Dr. Salvian’s findings.
The Defendant then brought an application for the Plaintiff to attend a physician to obtain a ‘responsive‘ report.  Master Baker dismissed the application noting it should have been brought sooner and parties are not allowed to “shoehorn” a late request for a medical exam into the responsive evidence rule.  In dismissing the application Master Baker provided the following reasons:

[13] Dr. Salvian was consulted and gave a report which became part of the clinical records of the family doctor, Dr. Murphy.  The clinical records, including that report, were made known to the defence long ago.  In fact, Dr. Salvian’s, I will call it report number one, which was dated 2010, was listed in the plaintiff’s list of documents in April of 2011.

[14] In that report it is clear that Dr. Salvian, if he did not very specifically diagnose carpal tunnel syndrome or thoracic outlet syndrome — and I do not decide at this point whether he did or he did not — made it absolutely clear, at least to me, that that was a significant factor in his mind.

[15] On the last page of his report, page 20, he says:

In any event, it is my opinion that the carpal tunnel syndrome and the post-traumatic thoracic outlet syndrome and the soft tissue injury of the neck are directly caused by the flexion extension injury, …

He then talks a little more about spontaneous carpal tunnel syndrome.

[16] I also agree with Mr. Parsons that his latter report does not add significantly to that, not in such a fresh way that would justify surprise on the part of the defence.

[17] That being the case, I take Mr. Parsons at his word, and I agree it would have been perfectly appropriate had at some point before the 84-day deadline the defence requested an IME to deal with Dr. Salvian’s perspectives;  that would have been appropriate.

[18] To wait after that point is to — as I think one authority, perhaps Mr. Justice Macaulay used the phrase — “shoehorn” the opinion into a compacted, truncated chronology, i.e., the 42-day limit for a responsive report, when, in fact, it should have been anticipated well in advance of that and it should have been subject to the same 84-day rule.

[19] Again, nothing in this precludes the defence from delivering a responsive medical report.  It is just as in the Gregorich case, I do not see that it is necessary to do that to direct the independent medical examination.

$200,000 Non-Pecuniary Damage Assessment For Multiple, Disabling Orthopaedic Injuries

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Knee Injury Cases, ICBC Rib Injury Cases, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for multiple, complex, orthopaedic injuries caused by a motor vehicle collision.
In last week’s case (Tompkins v. Bruce) the Plaintiff was injured in a serious 2006 collision which was caused when the Defendant, who had been drinking and was driving while over the legal limit, crossed the centre line and collided with the Plaintiff’s vehicle.  The Defendant was found fully at fault for the crash.
The Plaintiff suffered multiple injuries including rib fractures with a collapsed lung, a left hip fracture, a fractured femur and a fractured patella.  These injuries required surgical intervention.  The Plaintiff had a total hip replacement and likely needed a total knee replacement in the future.

The Plaintiff was a plumber and gas fitter and was rendered totally, permanently disabled from his own occupation.  He was left with a minimal residual earning capacity.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $200,000 Mr. Justice Curtis provided the following reasons:

[47] Wayne Tompkins was 50 years old, living in Pemberton and happily employed as a tradesman when the June 3, 2006 collision occurred.  As a result of the injuries suffered by Mr. Tompkins which were caused by the negligent and criminally irresponsible driving of Tawnya Ley Bruce, Mr. Tompkins’ life has been permanently and very significantly altered.

[48] He has lost his ability to work in his trade at employment he enjoyed.  He has lost a great deal of his mobility and cannot enjoy activities such as skiing, hiking, snowmobiling, slow pitch, tennis and similar activities as he once did.  He cannot stand or sit for long periods of time.  His mood is depressed and his anger harms his relationship with other people ? particularly in the case of Nancy Larkin, his romantic partner after the accident who left him largely because of his anger and irritability.  In addition, Mr. Tompkins now faces the prospect of further surgeries, such as two knee replacements, another hip replacement, the prospect that the condition of his knees and hip may get worse ? and that each surgery comes with a risk of loss of function, dangerous embolisms, scar tissue, long recovery periods and possible poor results.

[49] On the other hand, Mr. Tompkins is an intelligent man whose depression and anger can quite likely be treated and improved.  He now has his own home in Chilliwack where he lives with his dog close to his sons and grandson.  He is capable of driving his car, at least as far as Chilliwack to Whistler.  There is a good chance that continued physical training will maintain his strength and may well improve his mobility and flexibility ? he has been capable of walking without a cane in the past, and even of lifting Nancy Larkin who weighs 115 pounds from her wheelchair into a car and it is not unlikely that his condition may again reach that level.  He did own and operate a boat after the accident and could again, and fishing is still possible.  While his trade work as he once did it is no longer open to him, there is the possibility he may find rewarding employment in some other field…

[53] Mr. Tompkins has been particularly unfortunate in having three major joints ? both knees and his left hip damaged in the collision.  Those injuries are permanent and the condition of those joints likely to get worse.  Considering that and his altered mood and other injuries, I find the sum of $200,000 a fair and reasonable amount for non pecuniary damages.

Failure to Obtain Injections and Mitigation of Damages

Written by admin on . Posted in Uncategorized.


Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, discussing whether the failure to follow through with steroid injections to treat a shoulder injury should result in mitigation of damages in a personal injury claim.
In the recent case (Lim v. Anderson) the Plaintiff suffered an impingement syndrome following a rotator cuff injury sustained in a collision.  In the course of recovery she had a steroid injection which provided temporary relief.  Her surgeon suggested that the Plaintiff could have further injections although she chose not to follow through with this advice.  The Defendant argued the Plaintiff’s damages should be reduced due to this choice.  Madam Justice Fenlon rejected this argument and provided the following reasons:
[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems: Papineau v. Dorman, 2008 BCSC 1443. The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations…

[23] Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.

[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.

[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.

This judgement can be contrasted with this 2010 decision where a Plaintiff’s damages were reduced by 30% for choosing to follow naturopathic treatment instead of injections/surgery to treat a shoulder injury.

The Flexibility of the 7 Day Rule for Jury Strike Applications

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 22, Jury Trials, Uncategorized.


Rule 12-6(5) imposes a 7 day deadline in which to dispute a jury notice. As previously discussed, the former rules of Court permitted parties to get away from this time limit by applying to strike a jury at a pre-trial conference.  With the overhaul of the civil rules does this exception still apply?  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, finding that it does.
In yesterday’s case (Cliff v. Dahl) the Plaintiff was ‘severely injured‘ in a 2007 collision.   The Plaintiff’s claim was set for trial and the Plaintiff filed a jury notice.  The Defendant brought an application to strike the jury notice but failed to do so within the timelines required by Rule 12-6(5).
The Defendant’s application was ultimately dismissed on the merits but prior to doing so Madam Justice Bruce provided the following reasons confirming the 7 day jury strike deadline is not strictly applied under the current rules:
[12] Under the old Rule 35(4)(a), a pre-trial conference judge, the trial judge or a master could make an order that a trial be heard without a jury. The court interpreted this provision broadly; it permitted the application to be made outside the seven day time limit imposed in old Rule 39(27), which is for the most part identical to the new Rule 12-6(5). While the old Rule 35(4)(a) does not appear to have found its way into the new rules, the rationale behind permitting applications outside the strict seven day time limit remains consistent with the intent and purpose of the new rules. The ability to apply to strike the jury notice outside the strict time limit was necessary to ensure a fair trial and the court’s ability to respond to a change in circumstances surrounding the conduct of a trial. Further, it is apparent that a trial management judge has authority to grant the relief claimed by Ms. Dahl without any reference to the seven day time limit: Rule 12-2(9)(b). Lastly, the court has a discretion to extend time limits in appropriate circumstances without the necessity of a separate application: Rule 22-4(2).

ICBC Ordered to Pay $75,000 Punitive Damages for "Bad Faith" Breach of Insurance

Written by admin on . Posted in Uncategorized.

I have previously detailed the potentially high financial consequences for civil breach of insurance.   One way a motorist can be in breach relates to intoxication.  If as a result of intoxication an individual is “incapable of proper control of the vehicle” then the motorist can be in breach of their insurance pursuant to Section 55(8)(a) of BC’s Insurance (Vehicle) Regulation.  This means that the individual can lose all insurance coverage and be forced to pay all damages flowing from a collision.
This is a severe consequence and in appropriate circumstances a very deserving one.  However, if ICBC is too quick to breach someone from their coverage they may be forced to pay damages in bad faith.  Such a result was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (McDonald v. ICBC) the Plaintiff was involved in a 2007 collision.  She was at fault for the crash.  She consumed two to three glasses of wine prior to operating a vehicle.  As she was driving she “turned the wrong way into an oncoming van” causing a collision and injuries to the other motorist.
The Plaintiff was issued a 24 hour roadside suspension and charged criminally with dangerous driving and alcohol related offences.  Eventually the criminal charges were dropped and the Plaintiff plead guilty to careless driving pursuant to section 144 of BC’s Motor Vehicle Act.
The injured van driver brought a claim against the Plaintiff.  ICBC eventually settled the claim for just over $182,000.  ICBC held the Plaintiff in breach of her insurance arguing the collision occurred as a result of impairment and sought to collect the money from her.
The Plaintiff disputed ICBC’s allegations.  She sued ICBC for a declaration that she is entitled to coverage and further for punitive damages.  Madam Justice Ballance sided with the Plaintiff.  The Court found that ICBC failed to prove that the collision occurred as a result of alcohol consumption and further ordered that ICBC pay the Plaintiff $75,000 for their ‘bad faith’ denial of coverage.  In reaching this result Madam Justice Ballance provided the following reasons:

[249] An insurer does not have to have an iron-clad case in order to deny coverage.  It is not expected to investigate a claim with the skill and forensic proficiency of a detective.  Nor is it required to assess the collected information using the rigorous standards employed by a judge.  The duty of good faith does not impose a standard of absolute liability in respect of an insurer’s wrong decision.  The duty simply dictates that an insurer bring reasonable diligence, fairness, an appropriate level of skill, thoroughness and objectivity to the investigation, and the assessment of the collected information with respect to the coverage decision.  My criticisms of the calibre of Ms. Baadsvik’s investigation and the shortcomings of her ultimate assessment should not be interpreted as suggesting that each individual omission or failing is, of itself, necessarily a violation of good faith and fair dealing.  It is their cumulative effect that constitutes a breach of its duty of good faith.

[250] It is not possible to perform a fair and proper evaluation in the absence of a reasonably thorough underlying investigation.  The latter precludes achievement of the former.  And so it was, in the case at hand.  Here, that deficiency was compounded by the other failings of Ms. Baadsvik’s evaluation of whether the plaintiff had been Incapacitated…

[259] ICBC engaged in settlement negotiations and concluded a settlement binding the plaintiff without appointing legal counsel on her behalf, all the while investigating her potential breach of contract.  The plaintiff was never informed of the settlement discussions despite the fact that ICBC knew that the damages in the To Action were likely to be significant and that the plaintiff would potentially have to bear them personally.  Indeed, after Ms. Baadsvik’s final discussion with Constable Wood on April 1, she was essentially on the brink of deciding that the plaintiff was in breach and that ICBC would not be indemnifying her.  The nature and sequence of these events, all fully within ICBC’s control, was manifestly unfair.

[260] Ms. Baadsvik was asked whether, in making the decision that the plaintiff was in breach, any consideration was paid to the settlement of the To Action.  She gave the unsatisfactory answer that she understood she had to wait until that settlement was concluded before she could advise the plaintiff about the breach and tell her how much money was involved.

[261] In my opinion, ICBC’s multiple failings in the investigation, assessment and breach decision that I have outlined, and its misconduct in relation to the To Action, respectively, contravened the duty of fair dealing and good faith owed to the plaintiff…

[263] This is an exceptional case.  The nature of ICBC’s bad faith behaviour took different shapes throughout the time line.  The overall handling and evaluation of the claim was overwhelmingly inadequate.  ICBC also allowed its objectivity to be tainted by the fact that the claim indirectly involved the “very difficult” Mr. McDonald.  While I recognize that the tainting of impartiality was only slight, it was nonetheless real and improper.

[264] In my opinion, ICBC’s conduct was harsh, high-handed and oppressive as those concepts have been developed in the jurisprudence, and marked a significant departure from the Court’s sense of decency and fair play.  Some of the acts of bad faith were inadvertent and others were not and they persisted over a considerable period.  The plaintiff was in a vulnerable position and suffered harm in consequence of ICBC’s misconduct, not all of which is tidily rectified by this Court confirming her right to be indemnified.  ICBC would not be accountable for its bad faith in the absence of an award of punitive damages, which it can well afford.  Such an award is justified to deter other insurers from engaging in similar types of misconduct, and to punish ICBC and condemn its breaches of duty…

[267] I declare that the plaintiff is entitled to indemnity from ICBC for all claims arising from the accident, including the To Action.

[268] I also award her the sum of $75,000 in punitive damages.

$85,000 Non-Pecuniary Damage Assessment For Annular Tear

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

(Disk Herniation Image via Wikipedia)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a vocationally disabling spine injury.
In last week’s case (Peers v. Bodkin Leasing Corporation) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted by the rear motorist focusing the trial on the extent of the Plaintiff’s injuries.
The Plaintiff worked his whole life in the forest industry as a boom boat operator.  The collision caused a spine injury (an annular tear which left him vulnerable to disk herniation) which fully disabled the Plaintiff from his own profession and largely disabled him from other professions.  In assessing non-pecuniary damages at $85,000 Madam Justice Humphries provided the following reasons:
[45] Dr. Kokan was of the view that the shocks experienced by Mr. Peers this past spring indicated an annular tear as a result of the accident that may be progressing into a herniated disk.  That could lead to neurological changes including numbness to his lower extremities and even weakness with loss of bowel and bladder control.  Mr. Peers would likely need surgery which could reduce but not necessarily eliminate the pain…
[53] I am satisfied that Mr. Peers made a determined effort not to let the pain interfere with the work he loved, but it eventually proved too much for him, and he was force to quit.  It may be that the shocks should be further investigated, and that Mr. Peers should not be as frightened of the potential for disk herniation as Dr. Kokan suggests.  Nevertheless, I accept that pain from the accident was the eventual cause of Mr. Peers’ inability to continue to work as a boom boat operator and at physical jobs in general…

[59] Mr. Peers must cope with a life that is very different from the one he led previously, and at the age of 53, he is unlikely to return to the activities he loved, even at a reduced level.  He has lost the ability to rely on his great strength and agility, which sustained his confidence and self-esteem, and although he can still participate in some activities, he is simply not the person he was.  He has tried, since the accident, to stay in the working world which defined him, and to remain active and replace the sports he loved and excelled at with others that he could at least participate in.  Since he quit work in March of this year when his symptoms became too much to handle and moved to Powell River, he describes a life which is reclusive and lonely.

[60] However, the future is not, in my view, completely bleak.  While testifying, Mr. Peers displayed stoicism and a sense of humour, underneath his evident uncertainty about the turn his life has taken.  Having only recently quit work, he is obviously still coming to terms with the need to find a different lifestyle to fulfil himself.  He has a number of concerned friends and family members who worry about him and want to assist him in improving his life and increasing his social contacts.  He has moved away from his long time home in the Gibsons/Roberts Creek area, but now lives near his son and grandchild.  This should provide him with opportunities to join in community activities if he will avail himself of them.

[61] Nevertheless, the loss of his former work and lifestyle is profound.  The cases cited by the defendants do not deal with such substantial loss.  I accept the plaintiff’s position that non-pecuniary damages should be $85,000.