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Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

Written by admin on . Posted in Uncategorized. 56 Comments on Hit and Run Identity Obligations Don't Require a Motorist to Go on "A Fool's Errand"

I have written numerous times about ICBC hit and run claims and a Plaintiff’s obligation to make ‘all reasonable efforts’ to identify an unknown motorist prior to being able to successfully sue ICBC for damages.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this obligation.
In this week’s case (Akbari v. ICBC) the Plaintiff was involved in a 2010 collision in which he struck a light pole.  The Plaintiff alleged an unknown motorist ran a red light forcing him to take evasive action in the agony of collision.  This motorist fled the scene.  Madam Justice Baker accepted this and found that an unidentified driver did indeed cause the collision.
ICBC argued that the Plaintiff’s claim should be dismissed because he failed to make all reasonable efforts to identify the motorist after the fact.  The steps ICBC suggested included staking out the intersection to try and see the vehicle on a subsequent occasion and interviewing residents at a nearby townhouse complex.  Madam Justice Baker found these suggestions to be nothing more than a ‘fool’s errand’ that would be fruitless.  In finding the Plaintiff’s actions reasonable the Court provided the following reasons:
[61]         I am satisfied that Mr. Akbari did make all reasonable efforts to ascertain the identity of the unknown driver in the circumstances that pertained here.  Mr. Akbari’s vehicle could not be driven and he was injured and in pain; he could hardly be expected to attempt to pursue the southbound vehicle on foot.  Mr. Akbari told the attending police officer ? Constable Da Silva ? that another vehicle had been involved and he provided a description of the vehicle as a light-colored – white or silver – small car.  Mr. Perez confirmed the involvement of the other vehicle and the description.  Constable Da Silva obviously considered there to be little or no prospect of locating the suspect vehicle even minutes after it had left the scene; he did make any effort to do so, or to alert other patrol cars to search for the vehicle.
[62]         Mr. Akbari recalls having inquired of Messrs. Shiles at the scene to find out if they had seen the vehicle that crossed his path.  The accident was reported to the defendant as a “hit and run” within two hours after the collision happened.  Both Mr. Akbari and his father provided statements to ICBC.  Upon learning from his counsel of his obligation to attempt to ascertain the identity of the driver who left the scene, Mr. Akbari posted a sign at the intersection asking any witnesses to come forward.  If any part of Mr. Chinchilla’s testimony is to be believed, it is that he saw the sign on the past at the intersection, and it was that sign that prompted him to contact ICBC and, eventually, Mr. Akbari’s counsel.
[63]         Mr. Akbari also contacted Constable Da Silva a few days after the accident and asked whether there was a traffic camera at the intersection where the accident happened.  Constable Da Silva said if there was a camera, it likely took only one photo ? when the light turned green ? but he said he would check and get back to Mr. Akbari.  It was reasonable for Mr. Akbari to assume that there was no camera ? or no useful footage ? when he heard nothing further from Constable Da Silva.
[64]         When Mr. Akbari realized that Ms. Berry did not know about Mr. Chinchilla and his claim to have witnessed the collision, he made sure that Ms. Berry was provided with the phone number he had for Mr. Chinchilla.
[65]         Counsel for the defendant suggested to Mr. Akbari that he should have canvassed the residents of the townhouse complex located near the intersection to search for possible witnesses, but I consider that would have been a fool’s errand.  The photographs of the scene indicate that the townhouse complex is some distance off the roadway and that it is highly unlikely that anyone in the townhouse complex would have been able to see anything happening in the intersection, particularly late at night, when it was dark and raining.  The resident who did call to report the collision only did so because she heard the sound of the crash.
[66]         Counsel also suggested that Mr. Akbari could have staked out the intersection to see if he could spot the vehicle that crossed his path.  Again, this would have been fruitless, I conclude, as neither he nor Mr. Perez was able to recall anything more specific than the fact that the other vehicle was a light-colored small car.
[67]         To summarize, I am satisfied that it is more probable than not that the accident was caused by the negligent actions of an unidentified driver who entered the intersection from 84th Avenue against a red light; and drove across Nordel, cutting off Mr. Akbari’s vehicle when it was so close to the intersection as to pose an immediate hazard.  I am satisfied on the balance of probabilities that Mr. Akbari did not fail to meet the standard of care required of a reasonably prudent motorist when he swerved to avoid colliding with the vehicle crossing his path.
[68]         I am also satisfied that Mr. Akbari made all reasonable efforts to ascertain the identity of the unknown driver; and that the unknown driver’s identity is not ascertainable.

Tractor-Trailer Driver Not Negligent for Entering Left Lane To Make Wide Right Turn

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 108 Comments on Tractor-Trailer Driver Not Negligent for Entering Left Lane To Make Wide Right Turn


Large commercial vehicles sometimes have to make wide turns.  In some circumstances it is necessary for such motorists to move out of the curb lane before executing such a turn.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing a collision occurring during such a maneuver.
In last week’s case (Steward v. Dueck) the Plaintiff was travelling the in the ‘fast’ lane.  Ahead of her in the curb lane was “a very large commercial vehicle“.  The commercial vehicle started a right hand turn by first signalling, checking that traffic was a safe distance behind him, crossing into the fast lane and beginning his wide turn.  During this time the Plaintiff collided with the trailer unit.  The Plaintiff sued for damages but the claim was dismissed.  The Court found the commercial driver was not negligent   In dismissing the claim Madam Justice Dardi made the following findings:
[25]         Prior to initiating his turn, Mr. Dueck described that he first checked the traffic. He was satisfied that he could safely initiate his manoeuvre, as the traffic was a safe distance behind him. He then signaled a left turn and moved from the slow or curb lane into the fast lane. He blocked the lanes by crossing the dotted dividing line. He then turned his Unit into and through the left turn lane to make his turn. He says he never had his Unit entirely in the left turn lane but rather, he turned his Unit through the lane in “an arc”. He described his turning manoeuvre, which he says he executes routinely, as being designed to discourage other drivers from passing him on either side while he is executing his turn…
[35]         Ms. Stewart does not take issue with Mr. Dueck’s assertion that the turning manoeuvre he undertook was appropriate for executing a right-turn at this particular Intersection. Rather, Ms. Stewart’s essential contention is that Mr. Dueck should have slowed down or stopped before initiating his right turn so that he could have first ascertained Ms. Stewart’s position. Her counsel disputes that Mr. Dueck activated his four-way flashers.  In any case, if it is found that Mr. Dueck did activate his four-way flashers Ms. Stewart argues that this did not constitute sufficient warning of his manoeuvre…
[55]         In my view, the preponderance of the evidence supports a finding that Ms. Stewart failed to exercise due care in all of the circumstances. A reasonable driver in her position would have been put on notice that she should proceed with caution. Mr. Dueck’s 72-foot Unit with 14 flashing lights proceeding at 15 kph was clearly there to be seen. Contrary to the assertions of Ms. Stewart’s counsel, such a large vehicle “does not turn suddenly.” Ms. Stewart did not testify that she was watching the Unit and that Mr. Dueck failed to activate his four-way flashers or the right turn signal. She merely says that she did not observe his four-way flashers or the right turn signal. Had she been paying due care and attention to the roadway ahead of her, the operational flashing signals of his Unit – seven signal lights located at intervals down the length of each side of the Unit – would have been clearly visible to her. The four-way flashers and right turn signal would have been fully visible from the rear and passenger side of the Unit.
[56]         The Supreme Court of Canada in Swartz Bros. Limited v. Wills, [1935] S.C.R. 628 at 634, endorsed the notion that: “[W]here there is nothing to obstruct the vision and there is a duty to look, it is negligence not to see what is clearly visible.” See also Millot Estate v. Reinhard, 2001 ABQB 1100 at para. 46. This principle has application to this case…
[65]         The only reasonable inference is that Ms. Stewart was not paying due care and attention as she was approaching the Intersection.
[66]         I find that Ms. Stewart bears the onus of proving negligence. In my view, she has failed to discharge her burden of proof. I am not persuaded on a balance of probabilities that the accident was attributable to any want of care on Mr. Dueck’s part. I find Ms. Stewart entirely at fault for the accident. Moreover, Ms. Stewart has failed to prove any negligence on Mr. Dueck’s part for the second impact she says occurred as Mr. Dueck backed up his Unit to clear the Intersection. I find that Mr. Dueck acted reasonably in the circumstances. In reaching my conclusions, I have considered the entire body of evidence and, in my view, it best harmonizes with the preponderance of the probabilities.

Injury Claim With 30 Expert Reports Deemed "Too Complex" For Jury Trial

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


Reasons for judgement were recently published by the BC Supreme Court, Victoria Registry  striking a jury notice in a complex personal injury claim.
In the recent case (Campbell v. McDougall) the Plaintiff was involved in two collisions, the first in 2006, the second in 2008.  The trials were set to be heard together with ICBC seeking trial by jury.  The Plaintiff brought an application to strike the jury notices arguing the claims were too complex for a jury.  Mr. Justice Gaul agreed and provided the following reasons:
[14]         The plaintiff has served approximately 20 expert reports authored by 16 different experts. In reply, the defendants have served 10 expert reports prepared by seven experts. Combined, these reports amount to approximately 700 pages. The jury is therefore facing the prospect of examining, considering, digesting, and retaining information from approximately 30 reports authored by 23 experts. The range of expert evidence is as broad as it is long, and it includes: general medicine, physiatry, psychiatry, neuropsychology, psychology, anaesthesiology, neurology, plastic surgery, occupational therapy, physiotherapy, forensic engineering and economic actuarial analysis.
[15]         In addition to these expert reports, there are also over 1,200 pages of clinical records relating to the plaintiff’s condition and treatment. Many of these records will be used in cross-examination of the plaintiff and consequently the jury will need to be instructed on the proper use of such records…
[32]         In my opinion, the number of expert reports involved in this litigation, the varying opinions contained in those reports, the medical terms and principles referenced in the reports, and the plaintiff’s unique educational and professional background combine to make this case a significantly complex one…
[37]         I find that the issues that will be addressed at the joint trial of these matters will require the trier of fact to engage in a prolonged examination of documents, as well as a scientific investigation. I also find that the issues in dispute between the parties are of an intricate or complex nature.
[38]         I have reviewed and considered the authorities Ms. Stevens has submitted where juries have addressed complex issues in personal injury cases, as well as other types of claims, over the course of long trials. Having done so and having regard to the principles articulated in Nichols, it is my considered opinion that the examination and investigation in the present case cannot be made conveniently with a jury. Moreover, given the intricate and complex nature of the issues in dispute, in my view this case is not one that is suitable for trial with a jury.
[39]         The plaintiff’s applications are granted. The jury notices in both cases are struck out. The joint trial of these matters will therefore take place before a Supreme Court justice sitting without a jury.

$60,000 Non-Pecuniary Assessment For Chronic Grade II Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived posts documenting BC soft tissue injury non-pecuniary assessments, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic Grade II Whiplash Injury.
In this week’s case (Strazza v. Ryder) the Plaintiff was injured in a 2009 rear-end collision.  He suffered soft tissue damage to his neck and mid back.  His symptoms of pain, while “not debilitating” continued to the time of trial and caused him to reduce or modify his daily activities   His symptoms were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Adair provided the following reasons:
[67]         Mr. Strazza himself reports that he continues to experience pain.  It is not debilitating, and Mr. Strazza has not claimed that it is.  It has not prevented him from working or doing household chores or working on his car.  As Mr. Strazza describes it, he can basically do everything he did before the accident, but with pain.  Mr. Strazza describes his situation as one where he works and carries on despite his pain symptoms, which he does his best to alleviate by taking over-the-counter medications or by calling on someone to help.  As a result of his pain symptoms, Mr. Strazza has modified some of his activities, both leisure and work-related, since the accident.  Friends – Ms. Miller and Ms. Goalder – gave evidence of their observations in this respect, and their evidence supported Mr. Strazza’s.  The changes in Mr. Strazza are not drastic, but they are changes nevertheless…
[72]         More generally, I found Mr. Strazza to be forthright and a credible witness.  He spoke plainly and did not exaggerate.  He had no difficulty and no hesitation conceding points that were not necessarily in his favour, for example, that working for Madill was just not for him.  On cross-examination, Mr. Strazza was the opposite of defensive or argumentative, which allowed the cross-examination (by very experienced counsel) to proceed smoothly and efficiently.
[73]         I therefore find that, as a result of the accident, Mr. Strazza sustained soft tissue injuries to his cervical spine and his thoracic spine.  Specifically, and as set out in Dr. MacKean’s February 8, 2012 report, I find that Mr. Strazza sustained a grade II whiplash associated disorder in the cervical spine, which (as of trial) was resolving and a grade II whiplash associated disorder in his thoracic spine with residual pain and muscle spasm involving the left mid to lower thoracic region.  Based on Mr. Strazza’s evidence (supported by the evidence from Ms. Miller and Ms. Goalder), he continues to experience some pain as a result of his injuries.  I therefore find, based on this evidence and the opinion evidence from Dr. MacKean, that Mr. Strazza’s pain symptoms will probably not resolve completely, although they can be improved with a regular exercise program and pain relief can be obtained through occasional use of over-the-counter medication…
[81]         Taking into account Mr. Strazza’s age, the effect of Mr. Strazza’s injuries on his day-to-day activities and on his lifestyle in general, including on his career goals, Dr. MacKean’s prognosis that the pain is unlikely to resolve completely, and the cases that have been cited to me, I assess Mr. Strazza’s non-pecuniary damages at $60,000.

Late Plaintiff Testimony Does Not Result In Adverse Inference in Injury Claim

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

In my ongoing efforts to track judicial commentary of late plaintiff testimony in injury litigation, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further addressing this practice.
In this week’s case (Ram v. Rai) the Plaintiff was injured in a rear-end collision.  At trial her mother and sister testified before she did.  The Defendant argued that the Court should draw an adverse inference in these circumstances.  Mr. Justice Holmes refused to do so but provided the following comments addressing the practice of late plaintiff testimony:
[36]         A plaintiff is free to call her witnesses in the order she and her counsel choose.  However, I agree with the defendants that for a plaintiff to testify after hearing other witnesses testify may affect the weight that can be given to the plaintiff’s own evidence about matters the earlier witnesses addressed.  It may be difficult for the trier of fact to be confident that the plaintiff’s account of events is her own, and is not coloured by or adapted to the preceding evidence. 
[37]         I note also that it may be difficult for the trier of fact to appreciate and assess the full import of the evidence of supplementary witnesses without having first seen and heard the plaintiff herself in the witness stand.  However, that observation relates to a matter of practice or effective advocacy, and not to one of law, evidence, or civil procedure. 
[38]         Madam Justice Humphries discussed these problems at greater length in Gustafson v. Davis, 2012 BCSC 1576 at paras. 112-116.
[39]         Mindful of the potential dangers in the sequence of witnesses in this trial, I find the situation to be a relatively unusual one in which I can be fully confident that Ms. Ram’s evidence was not contaminated in any way by her having heard her mother and her sister give evidence before her.
[40]         The three witnesses gave accounts of the collision and its effects on Ms. Ram, apparent or felt as the case may be, that were consistent with each other in their broad outline but which each spoke clearly and convincingly from the witness’s own perspective.  The mother and the sister testified about what they saw, while Ms. Ram testified about what she felt. 
[41]         For example, Ms. Ram’s mother testified in general terms that after the accident Ms. Ram spent much more time alone in her room.  Ms. Ram in her testimony did not describe her conduct in quite the same way.  She testified that after the accident she felt generally unwell and could not keep up with her usual activities, friends, school, and work.  Sometimes her headaches were bad and she would need to stay alone in a dark room.  These were not identical accounts, but they described the same response from different perspectives.
[42]         In another example, Ms. Ram’s sister testified that Ms. Ram’s posture was affected by the accident.  She testified that Ms. Ram would tend to stoop, and as she began to recover the sister would often touch Ms. Ram on the nose to remind her to straighten up.  Ms. Ram made no mention of stooping or her sister touching her nose, and referred only in passing to her posture as an aspect of the consequences of her back pain.  Ms. Ram’s evidence was in no way inconsistent with her sister’s, but spoke of the pain she herself felt, rather than the stooping the sister saw.
[43]         To my observation, when Ms. Ram had no personal knowledge about a matter, she said so; she did not borrow from the testimony she had heard her mother or her sister give shortly before.  For example, Ms. Ram testified that she did not know whether the impact of the collision had moved the Ram car forward.  She had been in the courtroom when her mother testified earlier during the same day that the impact moved the car forward by between 3 and 6 feet, shifting it into the intersection.
[44]         In short, I found each of Ms. Ram and her mother and her sister to be impressive and entirely credible witnesses.  While I have carefully considered the implications of the order in which they gave their testimony, I find no indication at all that Ms. Ram’s evidence was affected by her mother and sister having testified before she did.

Plaintiff's Are "Entitled To Rely" On Representations of ICBC in Naming Defendants in Pleadings

Written by admin on . Posted in BCSC Civil Rule 6.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing whether a party should be substituted in on-going litigation where the Defendant was incorrectly named due to representations of ICBC.  In short the Court held substitution should be permitted in such circumstances.
In this week’s case (Bedoret v. Badham) the Plaintiff was involved in a 2009 motor vehicle incident.  After retaining counsel ICBC wrote to the Plaintiff’s lawyer indicating that the other motorist involved in the incident was a Mr. Badham.  The Plaintiff initiated a lawsuit against this individual.  After the limitation period expired ICBC responded to the lawsuit denying that Mr. Badham was involved in the incident.  The Plaintiff then sought to name ICBC as a ‘nominal defendant’ pursuant to section 24 of the Insurance (Vehicle) Act.  ICBC opposed the application.   Master Young criticized ICBC’s position calling it ‘astonishing‘ and finding that an order adding ICBC to the litigation was appropriate and further went on to award increased costs.  In doing so the Court provided the following reasons:
[16]         ICBC takes the astonishing position in this application that plaintiff’s counsel should not have relied on the March 1, 2010 letter setting out the third party particulars. If that letter cannot be relied on by the plaintiff’s counsel, then I wonder what the purpose of sending the letter is. The plaintiff’s counsel submits, and I accept, that it is standard practice in the personal injury bar to send an introductory letter asking ICBC for particulars and for copies of statements. It is common practice to wait for the reply letter before issuing a notice of civil claim. No letter was ever sent to the plaintiff’s counsel advising him that the contents of the March 1, 2010 letter were incorrect. It was not until the response to civil claim was filed after the expiry of the limitation period that ICBC informed the plaintiff that the named third party was not the driver of the vehicle that caused the accident.
[17]         Now ICBC opposes the application to be added as a nominal defendant. It submits that the plaintiff knew or ought to have known that ICBC was handling this file as an unidentified motorist case despite the fact that the official letter from ICBC to his lawyer said exactly the opposite…
[22]         …ICBC asserted to counsel for the plaintiff in the official first letter that Jaswinder Badhan was the driver of the vehicle. This was long after any discussions with the unrepresented plaintiff and in response to the standard letter sent at the commencement of all motor vehicle accident cases. Plaintiff’s counsel was entitled to rely on the information contained in the letter. If ICBC later learned that it was in error, it had a responsibility to correct that error so as not to mislead the plaintiff. Failing to do so until after the expiry of the limitation period and then opposing the amendment to the claim is unreasonable…
[32]         I find that it is just and convenient to add ICBC as a nominal defendant. I do not find the delay in applying to court to be inordinate. I will not order that the action against Mr. Badhan be discontinued. I will order that the misnomer be corrected.
[33]         As a result of the unreasonable position taken by ICBC in this case, I find that Scale B costs do not adequately compensate the plaintiff, and I order that the proposed defendant, ICBC, pay costs to the plaintiff in any event of the cause at Scale C.

"Mere Possibility" of Pre-Existing Injury Not Sufficient To Justify Document Disclosure Request

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further judicially shaping document disclosure obligations under the new rules of court.
In last week’s case (Bains v. Hookstra) the Plaintiff was injured in a 2009 motor vehicle collision.  The Plaintiff agreed to produce his MSP Printout, Pharmanet Records and WCB records from the time of the crash onwards.  The Defendant was not satisfied with this timeframe and sought these records from before the collision.  In support of their application the Defendant produced evidence that the Plaintiff was involved in two collisions in the year prior to the accident at issue in the lawsuit.  The Defendant plead that there was a pre-existing injury but the Court noted this was done in a “very pro-forma way“.
Master Muir ultimately rejected the application finding that evidence of previous collisions leads to no more than “mere speculation” of a pre-existing injury.  In dismissing the application the Court provided the following reasons:
[14]         The applicant must demonstrate a connection between the documents sought and the issues beyond a “mere possibility”: Przybysz v. Crowe, 2011 BCSC 731 at para. 45, referencing Gorse v. Straker, 2010 BCSC 119 at para. 53, and, as was noted by Master Bouck in Edwards v. Ganzer, 2012 BCSC 138, at para. 51, “there must be some ‘air of reality’ between the documents and the issues in the action ….”
[15]         The plaintiff has clearly denied that he was suffering from any pre-existing injury at the time of the accident in question or for two years prior. He has further denied that he made any WCB claim during that two-year period.
[16]         The evidence put forward by the defendant does no more than raise the mere possibility of a prior existing condition. In the circumstances of the plaintiff’s denial, that evidence is insufficient to warrant an order for the production of the documents sought.
[17]         The defendant’s application is therefore dismissed

$20,000 Non-Pecuniary Assessment for "Relatively Mild But Likely Permanent" Soft Tissue Injuries

Written by admin on . Posted in BCSC Civil Rule 15, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases. 1 Comment on $20,000 Non-Pecuniary Assessment for "Relatively Mild But Likely Permanent" Soft Tissue Injuries

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with damages for minor soft tissue injuries following a so-called ‘low velocity impact‘ collision.
In the recent case (Wallner v. Uppal) the Plaintiff was involved in a 2008 rear-end collision. Fault was admitted.  The collision was relatively minor causing just under $450 worth of vehicle damage.  Despite this the Plaintiff suffered a soft tissue injury to her neck and shoulder.  Her symptoms were “mild” but were expected to linger into the future.  In assessing non-pecuniary damages at $20,000 Madam Justice Stromberg-Stein provided the following reasons:
[14]         The plaintiff’s claim is for damages for a permanent partial disability relating to her intermittent ongoing neck, upper back and shoulder pain and left arm pain, and numbness and tingling she says is caused by the accident.  The plaintiff acknowledges her condition is relatively mild but maintains it is persistent and likely permanent.  She claims she experiences pain and discomfort while commuting to work, at work, doing household work, and during recreational activity.  She complains of intermittent weakness and lack of sensitivity in her left hand.  She claims she is unable to predict when she will be symptomatic.
[15]         In this case, in addition to minimal cosmetic damage to the vehicles, the plaintiff’s subjective complaints were not objectively verifiable, and in any event her injuries were minor and of minimal impact on her life.  The plaintiff has not missed any work and has no claim for past wage loss or for loss of future earning capacity despite maintaining a permanent partial disability.  The evidence establishes the plaintiff suffered soft tissue injuries of a minor nature, with continued minor, intermittent numbness and tingling in her left arm and fingers, which injuries have had and will have minimal impact on her life.
[16]         In the result, based on an assessment of the evidence and considering the authorities relied on by counsel, the plaintiff is awarded general damages in the amount of $20,000.  In addition, she is awarded special damages in the amount of $283, with court order interest.  With the agreement of counsel, costs are set pursuant to Supreme Court Civil Rules, R.15-1(15)(c) at $11,000 and disbursements.

Substitution Orders in ICBC Hit and Run Claims are "Mandatory in Their Nature"

Written by admin on . Posted in Uncategorized. 111 Comments on Substitution Orders in ICBC Hit and Run Claims are "Mandatory in Their Nature"

Last year I questioned the correctness of reasons for judgement which refused to make a substitutional order in an ICBC Claim involving an unidentified motorist.  Reasons for judgement were released this week by the BC Supreme Court,  Chilliwack Registry  further addressing this area of the law finding that substitution orders are mandatory once the identity of an unidentified motorist becomes ascertained.
In this week’s case (McStravick v. Metzler) the Mr. Metzler and Ms. McStravick were occupants of a motorcycle involved in a serious collision.  An allegation was made that an unidentified motorist caused the collision.  ICBC was named as a nominal defendant under section 24 of the Insurance (Vehicle) Act.
Evidence disclosed on the eve of trial and trough witnesses during trial gave rise to identifying the unknown motorist.  The Plaintiff brought an application to substitute this person for ICBC in the lawsuit.  The motorist and ICBC vigorously oppose the application.  Mr. Justice Blok ordered the substitution and in doing so provided reasons highlighting the mandatory nature of Section 24(6) of the Insurance Vehicle Act.  The Court provided the following reasons:
[53]         I would observe at the outset that s. 24(6) of the Insurance (Vehicle) Act is mandatory in nature.  If the identity of the driver is ascertained then that person must be added as a defendant in substitution for ICBC.  The factors applicable to cases where parties are being added under the Supreme Court Civil Rules therefore have no application: Tse v. ICBC (1996), 24 B.C.L.R. (3d) 394 (S.C.).
[54]         While counsel for Ms. Sidwell concedes that the Court probably does not have jurisdiction to refuse to substitute an ascertained defendant in place of ICBC, he said that conditions may be specified, as expressly provided by s. 24(6).  However, counsel did not suggest any conditions that might be appropriate, short of refusing the application altogether.  Given the mandatory language of the section, a refusal cannot be a condition.
[55]         The mandatory language of the section also limits, and probably eliminates, any scope for the application of the equitable principle of estoppel insofar as applying the estoppel principle would operate to defeat the intent and effect of the section.
[56]         Even if there might still be some room for estoppel to operate, I am not satisfied that estoppel has been made out on the facts of this case.  Ms. Sidwell submits that as a result of the “shared assumption” of all counsel that she was not the unknown driver, she ceased being represented by counsel and did not take part in the trial.  What that submission fails to address is the fact that (1) the substitution application can be made at any time prior to judgment being granted, and (2) her interests were represented throughout by ICBC as nominal defendant.  As to the former, since s. 24(6) allows for a substitution application to be made at any time prior to judgment, a trial might well be completed before an application is made and with no hint of it beforehand.  Here, Ms. Sidwell had two years or more of advance notice and she had representation by counsel during that time.  In addition to her own counsel, counsel for ICBC represented the interests of the unknown driver, whoever that might have been, and thus in some respects at least she had two lawyers representing her interests until shortly before trial.
[57]         Ms. Sidwell complains that she was deprived of taking part in the trial, but until she was made a party she would have had no standing to take part.  She points to no prejudice associated with the fact that her interests, at least her interests in a general sense, were represented by counsel for ICBC instead of her own counsel.
[58]         Further, I do not consider that an estoppel against ever bringing a substitution application arises in this case.  Counsel for the plaintiff Metzler submits that while the last-minute disclosure of the Sidwell and Popovich witness statements revived the possibility that the plaintiffs would bring a substitution application – a possibility that counsel expressly stated at the outset of the trial – it was not until those witnesses had given evidence and their evidence tested in cross-examination that they considered the plaintiffs had a sufficient basis on which to bring the application.  In these circumstances I consider this approach to have been reasonable and prudent.  However, ICBC and Ms. Sidwell argue that the plaintiff Metzler is bound by his counsel’s letter so as to foreclose any possibility of a successful substitution application.  This would mean that even if Ms. Sidwell had expressly admitted at trial that her driving was the cause of the accident the defendants could not have substituted her as defendant in ICBC’s stead.  That cannot be correct.
[59]         Finally, there is an additional difficulty in applying an estoppel here in any event because the primary facts asserted as giving rise to an estoppel apply only to the plaintiff Metzler and not to the plaintiff McStravick.  The most that can be said in regards to Ms. McStravick is that her counsel attended a trial management conference at which the judge was told that the application was not being brought.  Only in Mr. Metzler’s case was a letter written, in arguably more definitive terms.  This leaves the unsatisfactory possibility that Ms. Sidwell might be substituted as a defendant in one case but not the other.  Fortunately I do not have to address this difficulty because I conclude that even on the strongest facts that are alleged an estoppel of the type and scope asserted does not arise.

$85,000 Non-Pecuniary Assessment for Long Term Soft Tissue Injuries with Guarded Prognosis

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

An appeal of the below decision was dismissed by the BC Court of Appeal in February 2014
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Adding to this sites database of ICBC soft tissue injury judgements, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries with a guarded prognosis.
In the recent case (Clark v. Kouba) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted focussing the trial on assessing damages.  The Plaintiff brought a claim “well in excess of one million dollars” while the Defendant argued the losses were minimal and that the Plaintiff was “feigning her injuries for financial gain“.
Madam Justice Power disagreed with the Defendant’s credibility attack but did award “a much more modest sum” than the plaintiff ultimately sought.  The Court found that the crash caused soft tissue injuries that impacted “all aspects of the plaintiff’s life” and that the prognosis was guarded.  In assessing non-pecuniary damages at $85,000 the Court provided the following reasons:
[72]         In this case, it is clear that the soft tissue injuries the plaintiff suffered have impacted all aspects of the plaintiff’s life.  In addition to the physical symptoms I have detailed above, her injuries have impacted her personal relationships including her relationship with her husband and children.  She has difficulty in performing some household chores, including making the beds and laundry and she has to call upon her husband and children to perform those tasks.
[73]         The plaintiff has been dedicated to her own rehabilitation and such efforts in my view cannot be used to diminish the extent of her injury.  In that sense she can be considered a stoic individual.  Formerly she engaged in her recreational pursuits such as long distance running and yoga, for her own physical enjoyment.  Now when she engages in them it is for an additional purpose, in order to assist in managing her chronic pain.
[74]         I conclude that, as a result of the accident, Ms. Clark has suffered pain and loss of enjoyment of life, and her prognosis for the future is guarded.  All of the authorities cited by both plaintiff’s counsel and the defence make it clear that each case is unique and must be determined on its own facts.  This case is unusual, because the plaintiff is still able to participate in her recreational pursuits, including marathon running, and has completed a marathon in a second personal best time since the accident.
[75]         Having considered the authorities cited and all of the circumstances in this case, it is my view that $85,000.00 is a fair and reasonable award for non-pecuniary damages.