Skip to main content

Tag: bc injury law

Withdrawn Formal Offer Still Effective In Triggering Double Costs

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

In my continued efforts to track the judicial shaping of Rule 9-1, reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, ordering double costs following trial where a Plaintiff bested a withdrawn formal settlement offer.

In the recent case (Bartel v. Milliken) the Plaintiff was injured in a 2008 collision.  Prior to trial the Plaintiff delivered a formal settlement offer of $29,800.  This offer was withdrawn after trial but before judgement.  The trial ended in March of 2012 and judgement was delivered in April.  The judgement exceeded the Plaintiff’s formal offer by abot $9,000.  The Plaintiff applied for post offer double costs.  The Defendant argued these should not be awarded since the offer was withdrawn.  Madam Justice Gerow rejected this argument and awarded post-offer double costs.  In doing so the Court provided the following reasons:

[15] As stated earlier, the defendants submit the fact that Ms. Bartel withdrew her offer after trial is a factor which weighs against the awarding of double costs because it deprived the defendants of the ability to accept the offer at a later date as contemplated by the rule.

[16] However, at the same time the defendants concede that the intention and spirit of the rule governing formal offers to settle is to avoid the cost of a trial. In my view, the fact that Ms. Bartel withdrew her offer to settle between the time the trial ended and judgment was rendered is not a factor that weighs against an award of double costs.

No Negligence For Crash Following Tree Suddenly Falling on Roadway

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.
In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:
[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.

Driver Found Faultless For Collision With Child on Kick Scooter

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


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for a collision between a motorist and a child on a scooter.
In last week’s case (Adams v. Zanatta) the Plaintiff, who was 9 years old at the time, suffered serious injuries in a 2006 collision.  The Plaintiff was travelling down a paved alley on a kick scooter.  At the same time the Defendant was operating a vehicle.  From the Defendant’s perspective the alley was obstructed from view because of a fence.   The Plaintiff came from the alley and entered the roadway without yielding the right of way.  A collision occurred.  The Plaintiff sued for damages arguing the Defendant should have been more cautious in the circumstances.  In dismissing the claim Madam Justice Brown provided the following reasons:

[17] I accept Mr. Zanatta’s evidence that Mr. Adams did not stop before crossing 19th Avenue, even though Mr. Zanatta’s vehicle was an immediate hazard.  To fix blame on Mr. Zanatta, Mr. Adams must show that after Mr. Zanatta became aware, or with reasonable care could have become aware, he had a sufficient opportunity to avoid the accident.

[18] I am not satisfied that Mr. Zanatta could have avoided the accident by exercising reasonable care.

[19] Mr. Zanatta was driving in a careful and prudent manner after he turned onto 19th Avenue.  He was aware of the obstructed view of the alley caused by the fence.  He was also concerned about the construction on the north side of 19th Avenue and the cars parked on both sides of the street.  Although I am not able to determine exactly how fast Mr. Zanatta was traveling, I accept his evidence that he was driving slowly and that his best estimate, after returning to the site, is that he was traveling approximately 20 km per hour.  I also accept his evidence that he was beside the tree and portable toilet shown in the photos when he saw Mr. Adams.  At that point, Mr. Adams was just by the fence, coming out of the alley.  Mr. Zanatta applied his brakes as hard as he could and tried to swerve to the right, but could not avoid the collision.

[20] The evidence does not satisfy me that Mr. Zanatta’s driving was in any way inappropriate or negligent.  He was not traveling at an excessive speed for the circumstances.  I am satisfied that he was driving very slowly…

[25] Here, I am able to make the following findings: Mr. Zanatta was driving very slowly, approximately 20 km per hour.  Mr. Adams was traveling quickly.  I am satisfied that he was traveling faster than 5-10 km per hour, although I cannot determine how quickly he was traveling.  Mr. Adams did not stop.  As soon as he saw Mr. Adams, Mr. Zanatta braked hard, but could not stop his vehicle before the point of impact.

[26] As I have said, Mr. Zanatta’s speed was entirely appropriate to the circumstances, which included the restrictions to visibility caused by the fence and the parked cars and the construction, as well as the possibility that children and others may be in the area, and may emerge from the alley on either side.  I am not satisfied that a reasonably careful driver would have scanned the alley rather than looking forward, given all of the traffic concerns in the vicinity, on both sides of the street.  In any event, I am not satisfied that Mr. Zanatta could have avoided the collision if he had been looking toward the alley.

[27] Mr. Zanatta braked hard as soon as he saw Mr. Adams. He met his obligation pursuant to s. 181 of the Act. The Court of Appeal stated the duty of a driver toward children in Brewster (Guardian ad litem of) v. Swain, 2007 BCCA 347 at para. 18:

Chohan does state the law with respect to the duty on drivers to watch for children on or near the roadway.  Children are less inclined to obey the rules of the road and are more likely than adults to act unpredictably.  Mr. Justice Taylor said this:  “Once observed in a dangerous situation, children must be given special attention, so that any precautionary or evasive action indicated will be taken in time” (my emphasis).  This is especially so in suburban areas.

[28] As I have said, Mr. Zanatta was driving very slowly, in part because there might be children in the vicinity, although he had not seen any on 19th Avenue.  As soon as he saw Mr. Adams, he braked hard. In my view he fulfilled his duty.  A reasonably careful driver would not have done more.

For more on the Standard of Care for motorists driving near children you can click here for the Supreme Court of Canada’s latest comments on this topic.

BC Court of Appeal: Past Capacity Awards Permissible Even Where Wage Loss Fully Mitigated

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Important reasons for judgement were released yesterday by the BC Court of Appeal holding that an award for past diminished earning capacity can be made even when a plaintiff has fully mitigated their past wage loss.
In yesterday’s case (Ibbitson v. Cooper) the Plaintiff worked in the logging industry as a heli-faller.   He was injured in a collision and these injuries disabled him from his own occupation.  Despite this he was able to keep working in an alternate occupation which paid less.   By working longer hours at the lesser hourly rate the Plaintiff fully mitigated his past loss of income.  At trial the Court awarded the Plaintiff $95,000 for past diminished earning capacity.  The Defendant appealed arguing no award should have been made as there was no past wage loss.  The BC Court of Appeal disagreed and upheld the award.  In doing so the Court provided the following reasons for judgement:
[14] The issue on appeal may be stated in this way – did the trial judge err in giving an award for past loss of earning capacity in circumstances where the plaintiff had fully mitigated his loss of income but where the circumstances of his replacement employment required him to work longer hours?…

[19] While in many cases the actual lost income will be the most reliable measure of the value of the loss of capacity to earn income, this is not necessarily so. A hard and fast rule that actual lost income is the only measure would result in the erosion of the distinction made by this Court in Rowe: it is not the actual lost income which is compensable but the lost capacity i.e. the damage to the asset. The measure may vary where the circumstances require; evidence of the value of the loss may take many forms (see Rowe). As was held in Rosvold v. Dunlop, 2001 BCCA 1 at para. 11, 84 B.C.L.R. (3d) 158, the overall fairness and reasonableness of the award must be considered taking into account all the evidence. An award for loss of earning capacity requires the assessment of damages, not calculation according to some mathematical formula.

[20] In this case, the respondent clearly suffered as a result of the accident; he can no longer perform the job he was engaged in prior to the accident. He has suffered a pecuniary disadvantage as he needs to work longer hours to maintain his approximate pre-accident level of income.

[21] The trial judge considered pre-trial earnings both before and after the accident, explaining that calculating a precise value for the extra hours was a difficult task, and chose to assess the damages “at large”. Had Mr. Ibbitson worked the same amount of hours post-injury as he had pre-injury, he surely would have been found to have suffered a compensable loss of earning capacity. His entitlement to such damages does not disappear due to his industrious efforts to maintain his level of income, exceeding his legal requirement to mitigate. I agree with the trial judge’s conclusion and analysis.

$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases, Uncategorized. 52 Comments on $45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.

Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 51 Comments on Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian


When an infant sues for damages in BC they must do so through a litigation guardian.  Typically a parent acts in this role.  If an allegation arises that the litigation guardian’s negligence contributed to the child’s injuries can Third Party proceedings be brought against the litigation guardian?  The answer is yes as was demonstrated in reasons for judgement released by the BC Supreme Court, New Westminster Registry, earlier this month.
In the recent case (Alamdar-Saadati v. Lee) the Plaintiff was involved in a pedestrian/motor vehicle collision in 2009.  He was 6 years old at the time.   He was travelling alone on a transit bus.   After leaving the bus he “attempted to cross the street in front of the bus and was struck by a motor vehicle“.  The Plaintiff, through his mom acting as litigation guardian, sued the driver of the vehicle.
The driver brought an application to bring bring Third Party proceedings against the Plaintiff’s parents arguing they were negligent in allowing the Plaintiff to ride the bus alone.  The Plaintiff objected arguing the application would require the appointment of a new litigation guardian.  Master Keighley found that this was not a barrier to the claim.  In doing so the Court provided the following reasons:

[11] Ultimately, I have reached the conclusion that Ms. Alamdar’s status as litigation guardian does not impact the outcome of this case. She is, however, as a proposed Third Party, entitled to object to the issuance of the notice.

[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.

[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.

[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.)…

[19] I am well aware that granting the order sought will disqualify the mother from continuing to act as her son’s litigation guardian. In all fairness, this is a matter which she ought to have considered at the outset. If not she, then surely her counsel should have considered that there was a possibility that a Third Party claim might be advanced against her by virtue of the circumstances of this accident.

[20] The infant plaintiff will not lose his claim but an alternate litigation guardian will have to be found.

[21] The father, I should have mentioned earlier, did not oppose the application to add him as a Third Party.

[22] In the result, an order will go granting the defendant leave to file a Third Party Notice naming Zoleikha Alamdar and Mohsen Saadati as third parties in the form attached as Schedule “A” to the application with the addition of these parties as third parties in the style of cause thereof.

Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 54 Comments on Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

While the BC Supreme Court Rules give defendants in personal injury lawsuits the power to, in appropriate circumstances, force a plaintiff to attend an ‘independent’ medical exam, a plaintiff is entitled to reasonable accommodation with respect to the scheduling of these.  Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, demonstrating this point.
In the recent case (Welder v. Johnston) the plaintiff sustained injuries in a motor vehicle collision.  In the course of the lawsuit the Defendant sought to have the plaintiff examined by a vocational specialist to address the wage loss aspects of the plaintiff’s claim. The plaintiff agreed to be assessed by the Defendant’s expert but the date selected conflicted with a family reunion the plaintiff planned on attending.  The defendant brought an application to force the date but this was dismissed with the court finding a plaintiff is entitled to reasonable accommodation.  In dismissing the application the Court provided the following comments to defence counsel:

I’m not prepared to order the plaintiff to attend on a date when a family celebration and family reunion has been scheduled since January. I don’t think that being a plaintiff in an action you give up all rights to manage your own schedule, and I think it’s unfortunate that there was an error in your office and the information about his unavailability didn’t come to your attention sooner, but the reality is that based on the affidavit from Mr. Welder, he has a commitment that he’s made since January to be out and unavailable during the period in which this has been scheduled, and I am not prepared to make an order for him to attend in the middle of that period of the family reunion.
The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$40,000 Non-Pecuniary Assessment for L5-S1 Disc Herniation

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

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for injuries, including a symptomatic L5/S1 disc herniation sustained in a motor vehicle collision.

In the recent case (Pataria v. Bertrand) the Plaintiff was involved in a collision when he was 12.  Fault was admitted by the offending motorist.  Although the Court heard competing evidence about the cause of a low back disc injury Mr. Justice Truscott ultimately found this was caused by the trauma in the collision.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[171] I accept that the plaintiff sustained soft tissue injuries to his neck and back area, with accompanying headaches, in the motor vehicle accident. I also accept that initially he had symptoms of post-traumatic stress, difficulty falling asleep and hypervigilance, although those problems quickly resolved.

[172] I conclude however that physically the plaintiff is not as injured as counsel makes out. He is able to swim regularly and work out with weights in the gym.

[173] After the accident he was able to return to his sports of soccer, basketball and volleyball, albeit not at the same level of performance.

[174] At his examination for discovery on July 22, 2010 he said he was only feeling back symptoms once or twice a week.

[175] It is also a fact that initially he did not accept the recommendations of Dr. Low that he work harder at recovery although he has improved his effort as time has gone on.

[176] I accept the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia and hyperalgesia and seems to experience non-painful stimuli as painful and mildly painful stimuli as more painful, as a generalization to the area of pain. This is commonly seen with ongoing chronic pain complaints. At the same time she says he may experience gradual improvement of pain in the next few years.

[177] I also accept her opinion that it is more likely than not that the motor vehicle accident is the cause of the disc protrusion which is most symptomatic at L5/S1. Her analysis of the medical literature indicates that in a young man such as the plaintiff disc herniation is much less likely to occur without trauma and the plaintiff’s low back complaints here arose following the motor vehicle accident…

[191] I consider an appropriate figure for general damages for this plaintiff, in the absence of any evidence from a spine surgeon and any prognosis for the psychological problems, to be $40,000.

Clarity on ICBC Claims Challenging Increased Premiums vs Other Damages Following Collision

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

Last week the BC Court of Appeal provided reasons for judgement clarifying in what circumstances a Plaintiff can have separate proceedings to address the issue of increased premiums following a collision versus a tort claim for other damages.  In short the Court held that a separate claim against ICBC for breach of contract or breach of statutory duty (to revisit their division of liability for insurance premium purposes) will not be a barrier to a separate tort claim for damages against the at fault motorist.  However, if a claim is filed against the tortfeasor for damages for increased premiums then a subsequent lawsuit for other damages would be estopped.
In last week’s case (Singh v. Mchatten) the Plaintiff sued another motorist for damages as a result of a motor vehicle collision.  The Plaintiff succeeded and was awarded damages for his deductible to be returned with a finding the Defendant was liable for the collision.  The Plaintiff then commenced a Supreme Court action for damages for personal injuries sustained in this crash.  The second action was dismissed by the Court of Appeal who found the action was estopped by virtue of the prior litigation.  In doing so the Court of Appeal provided the following reasons:

[19] The other flaw in the judge’s reasoning lies in her equating the respondent’s motivation in bringing the first action with a cause of action.  The causes of action in the two proceedings are undeniably the same:  damages for negligence.  In order to achieve the respondent’s goal of reversing ICBC’s fault determination and to recover the deductible, it was necessary for the respondent to sue the driver and owner/lessor and prove all the elements of negligence:  duty of care, standard of care, causation and loss.  He would have to repeat the same process in the Supreme Court action in order to recover personal injury damages.

[20] The respondent could have sued ICBC in Small Claims Court without attracting an estoppel defence in the later proceeding.  Those were the circumstances of Innes v. Bui, 2010 BCCA 322.

[21] In that case, Ms. Bui was unhappy with ICBC’s assignment of fault to her in a two-vehicle accident.  She sued ICBC in Small Claims to reverse the determination but decided to substitute Ms. Innes as the defendant.  The judge dismissed the action on the ground that he could not decide whose version of the accident to accept and since Ms. Bui bore the onus of proof on the balance of probabilities, she lost.  Then Ms. Innes sued Ms. Bui for damages in the Supreme Court and met a plea of res judicata which was upheld.  For this Court, Low J.A. reversed the decision and held that no liability determination was made in the first instance and so the doctrine did not apply.  He went on to observe:

[33]      In the Small Claims action, Ms. Innes was the wrong defendant.  She certainly was not a necessary defendant.  That action was not based in tort.  It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone.  That was an issue only between Ms. Bui and ICBC.  Ms. Innes apparently had no say about being substituted as the defendant in place of ICBC.  She had no control over the conduct of the action and she had no right of appeal independent of ICBC.  To say that the judgment given in the Small Claims action should have the effect of denying Ms. Innes the opportunity to present her own case stretches the equitable defence of res judicata to limits which, in the interests of justice, the defence should not be taken.  In that action, Ms. Innes did not have her day in court in any real sense.

[34]      On this basis I question whether it is correct to say that the parties, in reality, were the same in the two actions or that any consideration of privy arises.

[35]      In any event, if all the criteria for res judicata were met, I would think that this is a special circumstances case in which the doctrine should not be applied.

[22] In the present case, the judge purported to follow Innes v. Bui.  She concluded her reasons in this way:

[32]      The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell [(1993), 77 B.C.L.R. (2d) 211 (C.A.)].  Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.

[33]      I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met.  If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff.  The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident.  It may be that the issue of liability is res judicata, but the application was not argued on that basis.  Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court.  In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court.  However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered.  To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.

[23] With respect, Innes v. Bui, is not similar to the case at bar but is its mirror opposite.  The Small Claims action in this case is not framed in terms of contract or breach of statutory duty against ICBC but in negligence against alleged tortfeasors…

[29] For these reasons, I would allow the appeal, set aside the order below, and dismiss the action.

You can click here to read my comments on the BC Court of Appeal’s previous decision of Innes v. Bui.

Supreme Court of Canada Clarifies Law of Causation in Injury Claims

Written by admin on . Posted in Uncategorized. 123 Comments on Supreme Court of Canada Clarifies Law of Causation in Injury Claims


In 2010 the BC Court of Appeal released reasons for judgement seeking to clarify the law of causation in negligence lawsuits.  The Supreme Court of Canada weighed in on this topic in reasons for judgement released today.
In today’s case (Clements (Litigation Guardian of) v. Clements) the Defendant was “driving his motorcycle in wet weather, with his wife riding behind on the passenger seat.  The bike was about 100 pounds overloaded.  Unbeknownst to (the driver), a nail had punctured the rear tire.  Though in a 100 km/h zone, (the driver) accelerated to at least 120 km/h in order to pass a car; the nail fell out, the rear tire deflated, and the bike began to wobble.  (the driver) was unable to bring the bike under control and it crashed“.  The crash caused a severe brain injury to the passenger.
The BC Court of Appeal dismissed the claim finding that the Plaintiff could not prove the Driver’s speed and overloading of the motorcycle caused the crash.  The Supreme Court of Canada, in a 7:2 split, found that errors were made at both the trial and appellate level and ordered a new trial.  In doing so the majority provided the following reasons on the “but for” test of causation in negligence claims:

[6] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault.  If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered.  This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm:  E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[8] The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ? in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  SeeWilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.  See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458.  See also the discussion on this issue by the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

The Court also went on to address the “exceptional” cases where the “material contribution to risk ” doctrine can be used finding its use is appropriate only where:

(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and

(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.