Tag: bc injury law

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


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

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

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

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

More on BC Injury Claims and Biomechanical Engineering Evidence


Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.
Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces.  In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.
Biomechanics is a relatively new scientific field.  Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence.  Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.
In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.  In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.
The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.
Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible.  In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“.  The Court reasoned as follows:
[1] Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ? the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…

[12] Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:

(1)      the evidence must be relevant to some issue in the case;

(2)      the evidence must be necessary to assist the trier of fact;

(3)      the evidence must not contravene an exclusionary rule; and

(4)      the witness must be a properly qualified expert.

[15] Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…

[23] To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).

[24] In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.

[25] I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.

$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.
In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.
ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.

BC Civil Sexual Assault Lawsuits Part 3 – Non-Pecuniary Damages

Further to my recent posts on BC civil sexual assault claims addressing limitation periods and vicarious liability, I will now address another topic in this unique area of law – the assessment of non-pecuniary damages.
Non-pecuniary damage” is the legal phrase that describes compensation for pain and suffering and loss of enjoyment of life.  When a person is harmed at the hands of others, be it intentionally or negligently, the harmed individual is usually able to claim compensation for their losses including for non-pecuniary loss.  Some of the factors that go into valuing non-pecuniary loss in British Columbia are discussed here.
Historically there was no ceiling in the amount of money that could be awarded to an injured plaintiff for non-pecuniary loss in Canada.  This changed, however, in 1978 when the Supreme Court of Canada heard a “Trilogy” of cases and handed down a significant decision which held that there should be a cap on Canadian awards for non-pecuniary damages.  Specifically the Canadian high court held that “Save in exceptional circumstances…an upper limit of non-pecuniary loss”  should be set at $100,000.
This cap on non-pecuniary damages has been the subject of much criticism and recent court challenges, however, none of this has resulted in change.  Unless there is legislative intervention or a reversal by the Supreme Court of Canada this cap will continue to remain in place.  This figure has been subject to inflation and now, in 2010, the rough upper limit is set at approximately $320,000.
With that introduction out of the way that brings me to today’s topic.  Does this ceiling for non-pecuniary damages apply to civil sexual assault cases?  The answer is no and this was made clear by the BC Court of Appeal in a case named S.Y. v. F.G.C.
In the S.Y case the Plaintiff was the victim of sexual abuse.   At trial a Jury awarded her $650,000 including $350,000 for non-pecuniary and aggravated damages.  This amount greatly exceeded the Canadian cap on non-pecuniary damages which was at $260,000 at the time.
The Defendant appealed arguing that non-pecuniary damages in sex assault cases are caught by the trilogy therefore the Jury’s award was in excess of what was permitted by law.  The BC Court of Appeal disagreed with this submission and made it clear that in British Columbia victims of sexual abuse are not caught by the Canadian cap on non-pecuniary damage awards.  Specifically the Court held as follows:
I am not persuaded that the policy reasons which gave rise to the imposition of a cap in “the trilogy” have any application in a case of the type at bar…The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts involving criminal behaviour…A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums.  Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an appellate court may intervene to correct disparity, and to foster consistency…In some cases, sexual abuse victims may require and deserve more than the “cap” allows, due to the unpredictable impact of the tort on their lives.  Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case.
Just as with limitation periods and the principles of vicarious liability, the law of non-pecuniary damages in sexual assault claims in BC recognizes that these cases are unique and certain advantages are provided in prosecuting such claims in the Civil Courts.

Document Disclosure and Litigation Privilege – A Potentially Difficult Test to Meet

Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.
In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle.  The Plaintiff was injured and eventually sued for damages.  In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.
The Plaintiff obtained legal advice almost immediately after the accident.  As a result of this the defence lawyers argued that “litigation was inevitable from the outset.”  On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.
The Plaintiff applied to Court for production of a number of the allegedly privileged documents.  The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision.  In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:

[8] The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen].  In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:

(1)        Was litigation in reasonable prospect at the time the document was produced,

(2)        If so, what was the dominant purpose for its production?

[9] The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:

22.       I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.

(b)        What was the dominant purpose for which the documents were produced?

23.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

24.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

25.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

26.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

27.       In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:

Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.

28.       Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.

[10] Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:

97.       The first requirement will not usually be difficult to meet.  Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

98.       To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[11] This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:

60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law

[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.

Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions.  The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.

Can a Defendant Force a Case Into Rule 68?


Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim.  Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time.  Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with.  The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009.  He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial.   The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances.  The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“.  The Court provided the following reasons:

[13] Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.

[14] The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.

[15] As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.

[16] As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.

[17] For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.

This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.

As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Rule 68 is repealed under the new rules but parts of it survive in Rule 15.  I’ve previously written about this and you can find my analysis here.  In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.

More on the Jurisdiction of BC Courts and Out Of Province Car Crash Cases


Further to my post yesterday discussing this topic another case was released today by the BC Supreme Court discussing the jurisdiction of the British Columbia Courts in relation to out of province motor vehicle collision tort claims.
In today’s case (Sooparayachetty v. Fox) 8 separate plaintiffs were apparently involved in an Alberta motor vehicel accident.  The Defendants were Alberta residents.  Some of the Plaintiffs were BC Residents and others were resident in the UK.  All of the Plaintiff’s brought lawsuits in both Alberta and BC with respect to their injuries.
The Defendant’s brought a motion to dismiss the claim arguing that the BC Court had no jurisdiction to preside over the lawsuit.  Master Scarth, sitting in the Vancouver Registry, agreed with the Defendants and dismissed the BC lawsuits.  In coming to this conclusion the Court reasoned as follows:

[13] The Court of Appeal has recently confirmed that the question of jurisdiction is to be determined exclusively by the substantive rules set out in the Court Jurisdiction and Proceedings Transfer Act, S.B.C. 2003, c. 28 (“CJPTA”):  Stanway v. Wyeth Pharmaceuticals Inc., 2009 BCCA 592, at para. 12.

[14] Section 3 of the CJPTA sets out the circumstances in which a court has territorial jurisdiction as follows:

A court has territorial competence in a proceeding that is brought against a person only if:

(a)        that person is the plaintiff in another proceeding in the court to which the proceeding in question is a counterclaim,

(b)        during the course of the proceeding that person submits to the court’s jurisdiction,

(c)        there is an agreement between the plaintiff and that person to the effect that the court has jurisdiction in the proceeding,

(d)        that person is ordinarily resident in British Columbia at the time of the commencement of the proceeding, or

(e)        there is a real and substantial connection between British Columbia and the facts on which the proceeding against that person is based.

[15] Section 10 of the CJPTA sets out a list of circumstances that presumptively constitute a real and substantial connection between British Columbia and the facts on which a proceeding is based for the purposes of s. 3(e).  A plaintiff who is unable to bring herself within the statutory presumptions may nevertheless prove other circumstances which constitute a real and substantial connection.

[16] The plaintiffs rely on s. 3(e) of the CJPTA – real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  In this case, the presumptive circumstances in section 10 of the CJPTA do not apply.  It is therefore for the plaintiffs to establish that there is the real and substantial connection necessary to found jurisdiction…

[20] While “real and substantial connection” has not been defined, the cases provide some guidance as to what connections are insufficient to found jurisdiction.

[21] It is clear that the fact that a plaintiff is resident in British Columbia is insufficient:  Roed v. Scheffler et al, 2009 BCSC 731, at para. 35, citing Jordan v. Schatz, 2000 BCCA 409, and Williams v. TST Porter (c.o.b. 6422217 Canada Inc.) 2008 BCSC 1315.

[22] The fact that a plaintiff continues to suffer damages in British Columbia is insufficient to establish a real and substantial connection on its own: Roed, supra, at para. 43…

[26] Since the hearing of this application, our Court of Appeal has rejected the approach set out in Muscutt: see Stanway, supra, paras. 71 to 73.  Smith J.A., writing for the court, held that:

In my view, any reliance on the Muscutt factors as a guide to determining the question of jurisdiction came to an end in British Columbia with the coming into force of the CJPTA.

[27] Accordingly, the test remains real and substantial connection which appears to require a straightforward determination of whether, on the facts, a real and substantial connection has been established.

[28] Applying Roed, the first connection upon which the plaintiff relies to found jurisdiction – damages suffered within British Columbia – is too tenuous.  The question therefore becomes whether the fact that, since the Alberta accident, the plaintiff has been injured in a second accident which occurred in British Columbia can provide the basis for a finding of jurisdiction.  These circumstances were not addressed in Roed.

[29] The parties appear to agree that a global assessment of Ms. Sooparayachetty’s injuries will be required.  I take this to mean that they accept that, in order to assess damages for which the Alberta defendants may be liable, the court will be required to assess “global damages” as of the date of trial in respect of both accidents.  Circumstances relating to the second accident will therefore be considered in the assessment of damages for the first.

[30] Section 3(e) of the CJPTA provides that the court has territorial competence if there is a real and substantial connection between British Columbia and the facts on which the proceeding against the defendants is based.  While facts relating to the second accident may have to be canvassed in order to assess Ms. Sooparyachetty’s damages arising from the first accident, the two claims remain separate.  In my view, the circumstances relating to the second accident are not facts upon which the proceedings against these defendants are based, and therefore cannot provide the real and substantial connection required by s. 3(e).  The need to call evidence relating to the second accident in the trial of the first, while an appropriate consideration on the question of forum conveniens (see, for example, Stewart v. Stewart, [1995] 6 W.W.R. 402; 5 B.C.L.R. (3d) 350 (S.C.)), does not confer jurisdiction on this court in relation to the first accident, and Ms. Sooparaychetty’s action arising from it.

[31] The other plaintiffs did not press their argument in relation to territorial competence over their actions.

[32] I find that, the plaintiffs having failed to establish that there is a real and substantial connection between British Columbia and the facts on which these proceedings are based, the court does not have territorial competence in these proceedings.

[33] Where the court determines that it lacks territorial competence, s. 6 of the CJPTA gives the court a residual discretion to hear the proceeding if it considers that:

(b) the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.

[34] In Lailey et al v. International Student Volunteers, Inc., 2008 BCSC 1344, at para. 47, Grauer J. interpreted s. 6 with reference to the Uniform Law Conference comment on the identical section in the uniform act:

Residual discretion permits the court to act as a “forum of last resort” where there is no other forum in which the Plaintiff could reasonably seek relief.

[35] It is clear that here, as in Lailey, British Columbia does not stand out as a forum of last resort.  There are no limitation concerns as the plaintiffs have commenced actions in Alberta as well.

[36] I do not propose to address the issue of forum conveniens given my finding regarding territorial competence, and the fact that the notice of motion did not seek relief of that nature.

[37] The plaintiffs having failed to plead, or adduce in affidavit form, facts sufficient to establish jurisdiction, the application by the defendants is allowed and the plaintiffs’ actions are stayed pursuant to Rule 14(6).

One of the reasons why Plaintiffs try to bring their lawsuits in BC versus Alberta is the fact that British Columbia has greater rights in place for those injured at the hands of others.  However, cases such as this one demonstrate that it is no easy task to establish jurisdiciton of BC Courts to hear cases inovlving foreign motor vehicle collisions.

I'd Buy That For a Dollar – Rule 37B and Nuisance Settlement Offers


As readers of the blog know Rule 37B of the BC Supreme Court Rules has given the Court considerable discretion with respect to awarding parties costs when formal offers of settlement are beat at trial.  One pattern that is becoming clear under the new Rule is that token offers of settlement are not particularly effective in triggering meaningful costs consequences.  Reasons for judgement were released today demonstrating this.
In today’s case (Skinner v. Fu) the Plaintiff was involved in a BC Car Crash and sued the other motorist.  The issue of fault was hotly contested by ICBC who argued that the Plaintiff was fully at fault for the accident and his injuries.  Mr. Justice Harvey of the BC Supreme Court agreed and dismissed the Plaintiff’s claim after a summary trial.
Having successfully defended the lawsuit ICBC (through the Defendant) applied for costs from the Plaintiff.  Prior to trial the Defendant made a formal offer to settle the claim for $1.  ICBC asked the Court to award them double costs.
Mr. Justice Harvey dismissed the motion for double costs.  In doing so he commented that a $1 offer in an ICBC Claim with contested liability is not a ‘reasonable offer’ which ought to trigger increased costs consequences for the losing party.  Specifically the Court held as follows:

[15] Liability was the central issue between the parties. The defendants, from the time the matter was first reported to the Insurance Corporation of British Columbia, took the position that no liability rested with the defendant driver despite his apparent breach of s. 187 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[16] Immediately after the writ of summons was issued, the offer to settle the matter for $1 was forwarded to the plaintiff.

[17] Where, as in the case at bar, the central issue is liability, I do not consider an offer of $1 plus costs of filing the writ of summons an offer which ought reasonably be accepted, either on the date that the offer to settle was delivered or on any later date. Were it so, all defendants in similar positions would follow suit and, as a result, enhance their entitlement to costs without promoting the underlying objective of Rule 37B, which is to encourage reasonable settlement.  As a result, this offer to settle will have no effect on the order of costs in this case.

This is not the first case interpreting Rule 37B in this way (click here to read my previous posts discussing the Court’s application of Rule 37B in BC Injury Claims) and the pattern seems well established that nominal offers will rarely be effective for triggering meaningful costs consequences.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

$80,000 Non-Pecuniary Damages for Knee Injury and Chronic Pain

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:
[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…
[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

$40,000 Non-Pecuniary Damages Awarded for Moderate Soft Tissue Injuries

Reasons for judgement were released today by the BC Supreme Court, New Westinster Registry (Lehtonen v. Johnston), awarding a Plaintiff just over $60,000 in total damages as a result of a 2005 BC Car Crash.
The car crash was a rear-end collision.  The issue of liability (fault) was admitted and the trial focused on quantum of damages (value of the Plaintiff’s injuries).
The accident was found to be a “very minor” one and appears to fit ICBC’s Low Velocity Impact program as the Plaintiff’s vehicle sustained only $780 in damages.  Notwithstanding the minor amount of vehicle damage the Plaintiff alleged she suffered from serious injuries including a right hip misalignment.
Madam Justice Baker found that many of the Plaintiff’s complaints were not caused from the crash, however, despite the minor nature of this crash the Court found that the Plaintiff did suffer various injuries.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 Madam Justice Baker summarized the accident related injuries as follows:

[83] Having considered the evidence as a whole, with particular reference to the medical opinion evidence, I conclude that Ms. Lehtonen sustained a mild injury to the soft tissues of her neck and upper back and a mild to moderate injury to the soft tissues of her lower back as a result of the motor vehicle accident on July 30, 2005.

[84] While the injuries caused discomfort, Ms. Lehtonen did not lose or quickly recovered full range of motion in the affected areas. The neck and upper back symptoms improved significantly within the first six weeks after the accident, although the symptoms recurred from time to time, exacerbated by physical exertion.  The lower back symptoms caused by the accident persisted for about a year but after the first several months have not been proved to be disabling.  Ms. Lehtonen testified that her physical injuries improved steadily over the first six months after the accident and that she did not have an exacerbation of her anxiety or depression related to the accident during that period…

[86] I accept that Ms. Lehtonen continues to have a subjective perception of a variety of symptoms, but I consider it more probable than not that the symptoms she has experienced from the second half of 2006 to present are not caused by the relatively mild soft tissue injuries resulting from the motor vehicle accident and are the result of a complex interplay of social, psychological and emotional factors unrelated to the motor vehicle accident; and fibromyalgia…

[90] I am satisfied that the discomfort from Ms. Lehtonen’s injuries likely did contribute to Ms. Lehtonen’s pre-existing depression and anxiety, although she denied this during the first six months post-accident.  I am also satisfied, however, that Ms. Lehtonen would have had depression even if the accident had not happened, and that any exacerbation of her mental health problems was temporary and minor.  The depression is, in my view, a chronic condition, that waxes and wanes….

[92] I am satisfied that Ms. Lehtonen had recovered from her physical injuries within a year following the accident. I accept that after that time she has continued to experience episodes of lower back discomfort from time to time.  However, her experience of other symptoms after that date is more probably caused by her complex pre-existing and ongoing psychiatric condition; in particular, depression and anxiety, exacerbated by adverse reactions to and, at times, abuse of medications prescribed to treat the depression and anxiety.  I also conclude that Ms. Lehtonen’s later and current subjective symptoms of soft tissue and joint pain are more probably the result of Ms. Lehtonen’s fibromyalgia than any sequelae of the motor vehicle accident injuries…

[94] As Chief Justice McEachern stated in Price v. Kostryba, [1982] B.C.J. No. 1518:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

[95] I might add that the same caution must be exercised when a plaintiff’s recovery not only deviates significantly from the normal course of recovery, but where a plaintiff develops new, different, unusual and more serious subjective complaints long after the event said to be the cause of those complaints.

[96] In saying this, I have not concluded that Ms. Lehtonen has fabricated these symptoms.  I accept that she subjectively perceives these things to be true.  I do not consider her perception of these symptoms to be reliable, however.  I consider it more probable than not that they are subjective physical manifestations of a complex interplay of emotional, physical and psychological factors unrelated to the motor vehicle accident.  Ms. Lehtonen’s statement to Dr. Riar that even the pain from a mosquito bite persists for months indicates that while these symptoms are real to her, they cannot be accepted on any objective evaluation.

[97] I am not persuaded that any symptoms that Ms. Lehtonen continued to experience subjectively more than 12 months after the accident, except for episodic and non-disabling muscle tightness and discomfort in her lower back, were caused by the motor vehicle accident.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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