Tag: free consultation

No Rush Folks, The Call is Free!


Over the past few years I’ve received plenty of e-mails and calls to discuss topics covered on my blog, radio interviews and other media participation.  Often people are looking for general legal information, other times they are seeking claim specific legal advice.
Every now and then a caller is hesitant to take up my time and rushes the conversation.  When I ask why they tell me they don’t want to be charged too much for the call.  This always catches me off guard because I don’t charge at all for these calls.
A recent such call prompted this short post.  I’d like to make it clear that inquiries are always welcome.  Time permitting I very much enjoy speaking with others about personal injury related matters.  If you call there is no need to rush, my initial consultations are always free of charge.  I only charge for my services when I’ve been formally retained with a written and signed agreement.
So, if you have a question about your claim or about BC Injury Law in general please don’t hesitate to contact me.  Thanks folks!

More on ICBC Claims and Requests for Particulars

Reasons for judgement were released today addressing a request for particulars in a BC car crash case where the issue of fault was admitted.
The Defendants asked the Plaintiff to provide particulars for any claim for special damages and loss of earnings to date.  The Plaintiff refused and Defendant’s obtained a court order requiring the same.  The Plaintiff appealed and reasons from that appeal were released today.
Mr. Justice Walker dismissed the appeal and in so doing made a few findings addressing requests for particulars that should be of interest to ICBC injury claims lawyers:
First that ‘particulars can only be sought for the following purposes

(a)     to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(b)     to prevent the other side from being taken by surprise at the trial;

(c)     to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(d)     to limit the generality of the pleadings;

(e)     to limit and decide the issues to be tried, and as to which discovery is required; and,

(f)      to tie the hands of the party so that he cannot without leave go into any matters not included.

After canvassing several cases dealing with requests for particulars the court held that:

[32] In my view, providing particulars of the plaintiff’s wage loss and special damages’ claims in a case where liability has been admitted, particularly a routine bodily injury case, serves the purpose of the Rules of Court.

[33] This is a matter where the information sought has to be provided to the defendants at some point in time.  The documents relating to the claim for special damages should have been listed in the plaintiff’s list of documents.  They were not, and that is troubling.

[34] Delivery of the particulars sought may well shorten the time spent at examination for discovery, but most certainly failing to deliver them will prolong the discovery process.

[35] There is nothing in the Rules of Court stating that the particulars provided are meant to contain the final wage loss and special damages’ amounts.  The McLachlin and Taylor text states that particulars of special damages are to be provided as they become known; the textual commentary suggests to me that particulars of special damages should be delivered from time to time as they become known.  That makes good sense in a bodily injury case as special damages may only be known on an ongoing basis as the amounts are incurred.  Simply because some members of the Bar have fallen into the habit of providing particulars of special damages once, late in the day, is no answer to what the McLachlin and Taylor text says is good practice………

[44] I emphasize again that the information sought by the defendants has to be provided to the defendants sooner or later.  Here, the defendants seek that information at an early stage in the litigation.  The defendants admitted liability at the outset.  They wish to know the value of the claim.   The medical receipts should have been produced in the list of documents and were not.  Delivery of particulars may assist the defendants in their assessment and approach towards resolution of the claim.

Close to $900,000 Awarded for Mild Traumatic Brain Injury (MTBI)

Following a trial that lasted over 6 weeks, reasons for judgement were released today awarding a Plaintiff close to $900,000 in damages as a result of a 2002 car crash that occurred in Vancouver, BC.
The Plaintiff, while stopped at a red light, was rear-ended by a Ford F150 pick up truck.  The force of the collision was found to be ‘sufficiently strong to cause the plaintiff to suffer bruising across his chest where the seat-belt had restrained him’.  The Plaintiff was able to drive away from the scene.
The Defendant did not admit fault but was found 100% at fault for this rear-end car crash.
The Plaintiff alleged various serious injuries including a Mild Traumatic Brain Injury (MTBI), Post Concussion Syndrome, Tinnitus, Dizziness, Loss of Balance and Depression.
The defence denied these injuries and insisted that the Plaintiff’s complaints were exaggerated.
The Plaintiff’s claim was largely accepted.  The court found that the Plaintiff ‘indeed suffered a mild traumatic brain injury which has resulted in a constellation of problems including a post concussion syndrome, a cognitive disorder, a major depressive disorder with anxiety, a pain disorder; and the significant exacerbation of his tinnitus.’
In the end the Court assessed damages as follows:

(i)

General damages – non-pecuniary

$200,000.00

(ii)

Past loss of income

$171,250.00

(iii)

Future loss of income earning capacity

$400,000.00

(iv)

Loss of opportunity

$10,000.00

(v)

Special damages

$26,955.75

(vi)

Costs of future care

$77,449.00

(vii)

Management and Tax Gross up

(to be determined)

This case is worth reviewing for anyone advancing an ICBC injury claim involving a mild traumatic brain injury.  Madam Justice Boyd engages in a thoughtful discussion of the competing medical evidence and provides articulate reasons why the Plaintiff’s physicians opinions were preferred over those of the Defence experts.
The court also makes interesting commentary on Waddell Signs starting at paragraph 34 of the reasons, particularly that:

[34] The defence also stressed the findings of Dr. Sovio, the orthopaedic surgeon retained by the defence, who examined Young in January 2006.  He concluded the plaintiff had exhibited significant exaggeration of his symptomology during several tests- thus exhibiting a number of positive Waddell signs.  As he put it, the plaintiff’s perception of his symptoms did not match the findings on physical examination.  The defence relies heavily on this opinion to support a finding the plaintiff is guilty of malingering or symptom exaggeration.

[35] I accept both Dr. Coen’s, and Dr. Rathbone’s evidence that the Waddell signs are notoriously unreliable for detecting malingering.  As Dr. Rathbone testified, the Waddell signs are “distinctly unreliable” in cases where the patient suffers depression.  Indeed the literature presented to Dr. Sovio at trial echoed that warning.  In cross-examination, Dr. Sovio adopted the extract from the SPINE journal (Exhibit 67, Tab 6, SPINE Volume 23, Number 21, pp. 2367-2371) to the effect that non organic signs cannot be interpreted in isolation.  He accepted the following summary at the outset of that article:

Behavioural responses to examination provide useful clinical information, but need to be interpreted with care and understanding.  Isolated signs should not be overinterpreted.  Multiple signs suggest that the patient does not have a straightforward physical problem, but that psychological factors also need to be considered.  …Behavioural signs should be understood as responses affected by fear in the context of recovery from injury and the development of chronic incapacity.  They offer only a psychological ‘yellow-flag’ and not a complete psychological assessment.  Behavioural signs are not on their own a test of credibility or faking.

Of course, as I will later note, in early 2006 the plaintiff was significantly depressed.  I have no doubt that any number of psychological factors were at play in the course of Dr. Sovio’s examination which may well have presented as the non-organic signs detected.  However, I do not conclude that the plaintiff was deliberately malingering or exaggerating his symptoms during that examination.

ICBC Claims and Trial Splitting

ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.
What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.
Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).
Specifically, Rule 39(29) states that:
The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.
Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.
In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:

[11] There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert, [1992] B.C.J. No. 2121.

[12] It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.

[13] Mr. McGivern relies heavily on Vaughn v. Starko, [2004] Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.

[14] With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.

[15] In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.

Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.

Rule 37B – The First Precedent

Today I’m blogging from the sunny City of Vernon, having completed an examination for discovery a little earlier than expected with some time on my hands prior to returning to Victoria.
In the first precedent that I am aware of concening Rule 37B (The new BC Supreme Court Rule dealing with formal settlement offers) reasons for judgement were released today refusing to award a successful defendant double costs after trial.
While this is not and ICBC claim, nor even a personal injury claim for that matter, the factors that the court considered in refusing to order double costs may be relevant in an ICBC claim.
The facts of the case briefly are as follows: The Defendant was sued by the SPCA for the costs of care the SPCA incurred for some neglected animals. The Defendant denied liability and made a formal offer to settle the claim for $1. The Defendant succeeded at trial. In such a scenario, under the old Rule 37, the Defendant would likely be entitled to ‘double costs’. Here, the Defendant asked the court to excercises its discretion under the new Rule 37B to award double costs.
The court refused to do so setting out the following reasons:

The Law

[12] Rule 37B(1) reads in part:

(1) in this rule “offer to settle” means

an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule …

[13] In the circumstances, Rule 37B applies to the offer made by Mr. Baker.

[14] Rule 37B (5) and (6) read:

(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[15] Subrule (5) is permissive. It empowers the court to make either type of order mentioned in the subrule. By necessary implication, it contemplates that the court may make an order that denies one of the two forms of relief set out in the subrule……….

The court then went on to canvass some prinicples of Bankruptcy law and concluded that the Defendant’s offerwas not one that reasonably ought to have been accepted (pursuant to Rule 37B(6)(a) on the date of the offer to settle or before the Rule 18A hearing at which time, pursuant to Rule 37(13), the offer was no longer capable of acceptance.

The court then went on to deal with Rule 37B(6)(b) and held as follows:

Rule 37B (6) (b)

Rule 37B (6) (b)

[34] This subrule indicates that the court, when exercising its discretion under Rule 37B should consider the relationship between the offer and the result in the action. In this case, the offer to settle was for one dollar. There was no counterclaim. BCSPCA’s only risk was costs. An offer that would confer a significant benefit, aside from costs, on a party who failed to accept the offer would be more likely to attract double costs under Rule 37B that an offer of the type made by Mr. Baker.

Rule 37B (6) c)

[35] The means of the parties may be taken into consideration when exercising discretion under Rule 37B. The BCSPCA is a non-profit society dedicated to prevention of cruelty to animals. It is a substantial society. It had an operating surplus of $379,022 in 2007. Mr. Baker has not disclosed his financial circumstances. His counsel stated in submissions that he is of “modest means”.

Result

[36] In all the circumstances, Mr. Baker has not established that the offer he made was an offer that ought reasonably to have been accepted by BCSPCA under the law applicable during its currency. Acceptance would not have conferred a significant benefit on BCSPCA other that its effect on costs. Although BCSPCA is likely the party most able to bear the costs of the litigation, Mr. Baker has not shown that an award of double costs is, considering the other factors bearing on an award of costs under Rule 37B, necessary to avoid the imposition of hardship in the litigation.

It remains to be seen what the number of soon to be coming precedents will ultimatly hold for the interpretation of this rule, but this case illustrates that courts may not take to kindly to ‘nuisance value’ settlement offers of $1.

$30,000 Pain and Suffering awarded for "mild to moderate soft tissue injuries"

Blogging from Kelowna again (and a lot less rainy here than Victoria when I left this am)…
Reasons for judgement were released today awarding a Plaintiff just over $43,000 in damages as a result of a 2005 BC motor vehicle accident.
For the purpose of researching non-pecuniary damages, the key findings of fact were made starting at paragraph 132 of the judgement which I reproduce below. Of particular interest is the judge’s 25% reduction of non-pecuniary damages for the Plaintiff’s ‘failure to mitigate’ set out at paragraph 134:

[132] I conclude that the plaintiff suffered a mild to moderate soft tissue injury the symptoms of which were exacerbated by his very heavy work duties, his financial worries, and the poor health of his wife and daughter. The combination resulted in a lack of motivation to adequately do the exercises and instead, a reliance on medications, which his wife supplied. On the evidence before me, I find that the injuries to his neck and upper back had more or less resolved within ten to twelve months after the accident with occasional flare-ups. It is probable that even with appropriate exercising, these symptoms would have persisted that long because he was obliged to return to work too early.

[133] There has been a substantial impact on his enjoyment of life and I am satisfied that he is not able to participate in family activities as much as he could before, including doing the Grouse Grind and fishing with his daughter. His ability to perform previously done housework has also been affected, although I am not satisfied on the evidence of the extent of gardening/lawn mowing help required. The daughter’s boyfriend could have been called as a witness and the failure to do so or explain his absence rightly allows the defence to suggest that I should draw an adverse inference, and I do so. Nevertheless, I accept that the plaintiff is not as able to bend or stoop to paint or do repairs to the house and his car. Further, in part because of his pain, his marital relations with his wife have been affected.

[134] Taking all that into consideration I find that the appropriate compensation for his non-pecuniary loss is $40,000, but this amount must be reduced because of what I find has been a significant failure on his part to mitigate his injuries. He has failed to abide by the doctors’ and physiotherapist’s advice to engage in an appropriate exercise program. Although he said that he could not afford the program, he admitted that he had not even taken any steps to enquire as to the cost. Further, the plaintiff has not diligently performed the exercises that can be done at home and stops at the first sign of pain. He relied and relies too heavily on painkillers when, in the opinion of the medical experts, he should be properly exercising. The defendants are not obliged to compensate a plaintiff who fails to take proper steps to reduce the extent of the loss. Accordingly, I would reduce the non-pecuniary damages as well as some other heads of damages by 25% to reflect this failure and set them at $30,000.

Drinking + Driving + Lying = -$67,000

Reasons for judgement were released today showing the potential consequences of driving after drinking and lying to ICBC about one’s level of intoxication.
In 2004 the Plaintiff was involved in a serious single vehicle accident. His vehicle was totaled and the amount of his own vehicle damage was $67,000.
He told ICBC that “I had no alcohol to drink on the day of the accident. I may have had one or two drinks in the twenty four hours prior to the accident”. It turns out this was false.
ICBC refused to pay the Plaintiff’s own damage claim. The Plaintiff sued ICBC for the value of the vehicle damage.
The evidence of a blood alcohol analyst was tendered by ICBC which showed that his evidence of ‘one or two drinks‘ was “inconsistent with the results of the blood sample analysis“.
In the end ICBC refused to pay out the Plaintiff’s claim because of his false statement to ICBC. Section 19(1)(e) of the then Insurance (Motor Vehicle) Act states that if an insured makes a willfully false statement with respect to an ICBC claim under their plan of insurance the claim can be rendered invalid.
Mr. Justice Masuhara concluded that ICBC was right in refusing to honour the Plaintiff’s claim and dismissed the lawsuit finding that “It is apparent to me that (the Plaintiff) was seriously intoxicated the night before the accident…He had a responsibility out of good faith to his insurer to disclose at least that he could not recall because of his drinking, instead of stating that he ‘may have had’ one or two beers…which can be taken as a statement of minimal consumption….I conclude, regrettably, that the evidence is clear and cogent that (the Plaintiff) did not have a belief in the truth of the statement he provided regarding his alcohol consumption‘.

ICBC and Hit and Run "Accidents"

(Note: the case discussed in the below article was upheld by the BC Court of Appeal on March 19, 2010)
What if you are injured in British Columbia in a Hit and Run motor vehicle accident where you could not ascertain the name of the driver / owner of the vehicle that injured you?  Can you claim compensation?  Often times yes!
Section 24 of the Insurance (Vehicle) Act permits victims of BC Hit and Run accidents to sue ICBC directly for such accidents in certain circumstances.
Section 24 has some restrictions and limitations in it and its imporatant to read this section and BC court cases interpretting it carefully to determine if the victim of a hit and run can seek money from ICBC.
What if the person who committed the hit and run was also committing another crime at the time such as fleeing from the scene of a robbery?  Can comepensation be sought in such circumstances?  Reasons for judgement were released today that seem to say yes.
In this case the Plaintiff was returning her shopping cart at the Real Canadian Supestore when a blue van drove by her and the passenger reached out and snatched her purse from her shoulder.  During this crime the Plaintiff ‘went flying backwards down the parking lot (and) hit her head on the pavement”.  She was injured and sued ICBC pursuant to section 24.
ICBC brought an applicaiton to dismiss the lawsuit claiming that s. 24 does not apply in circumstances where the unknown motorist is commiting a crime in the course of the hit and run.  The ICBC lawyer argued that “section 24…confines its amvit to motor vehicle accidents and that the present case involves, not an accident arising from negligence, but rather an intentional act amounting to a civil assault and battery and conversion, or in terms of the criminal law, an assault and theft or a robbery“.
In other words, the ICBC lawyer argued that the Plaintiff was not injured through the negligenct use of a motor vehicle rather because of an intentional criminal act.
The Honourable Mr. Justice Cullen dismissed the ICBC applicaiton and permitted the Plaintiff to carry on her lawsuit against ICBC as nominal defendant.   Mr. Justice Cullen concluded that there is nothing in section 24 that prevents a person from suing ICBC when the unidentified motorist was committing an intentional tort when injuring the Plaintiff.
For your convenience I reproduce the most compelling findings below:

[36] In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle.  That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim.  In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case.  It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.

[37] The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.

[38] In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle.  Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away.  For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured.  In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.

[39] In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant.  In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue.  Section 2 of the Insurance Act reads as follows:

… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….

[40] Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts.  The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.

[41] In the present case, there is no exclusion clause.  It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections.  However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar.  In Canadian Indemnity, supra, the relevant term being applied was as follows:

The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.

[see Straits Towing Ltd. v. Washington Iron Works¸ [1970] 74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].

[42] In Mutual of Omaha, supra, the applicable term under consideration was:

“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….

[43] Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.

[44] As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental use or operation of a motor vehicle.  It requires “only that the plaintiff establish ‘a cause of action’ against the driver (or owner) and that the injury arises out of the use or operation of the motor vehicle”.  It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.

[45] Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional.  In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle.  There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”

[46] Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”.  Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”.  He went on to note “[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example”.

[47] In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts.  The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion.  Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24.  The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part.  In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent.  There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff.  The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.

[48] I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.


$20,000 Awarded for Lingering Whiplash Injury

Reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car crash.
It was a rear-end accident. The Plaintiff was a passenger. In such cases fault is rarely at issue and here the ICBC defence lawyers admitted fault on behalf of the Defendant. The trial dealt only with the issue of quantum of damages (how much the injuries are worth).
The accident caused the Plaintiff to miss 2 weeks from work. When she returned her physical duties at work were somewhat limited. She took 14 physiotherapy sessions and saw her family physician several times after the accident.
The court’s relevant finding as to the extent of injury can be found at paragraph 64 of the judgement where the court held that:
[64] The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.
$20,000 was awarded for the Plaintiff’s pain and suffering. No other damages were awarded although a claim for ‘loss of earning capacity’ was advanced.
As is often the case in ICBC claims that proceed to trial, here the defence lawyer argued that the Plaintiff’s award should be reduced for ‘failure to mitigate’. What this means is that if a person unreasonably fails to follow medical advice and following such advice would have made a difference the amount of compensation awarded can be reduced.
Mr. Justice Truscott refused to reduce the Plaintiff’s damages even though the evidence established that she ‘did not do all of her home exercises and id not take physiotherapy when she had asked for it‘.
Why was this evidence not good enough to reduce the Plaintiff’s damages? Because there was no medical evidence that had the Plaintiff followed this course of treatment that her injuries would have recovered any better than they had.  This case is a good example of the fact that the defence has the burden of proof when arguing ‘failure to mitigate‘ in an ICBC claim and that expert medical evidence should be tendered to discharge this burden when addressing the effects of a rehabilitation program.

Another ICBC LVI Trial, Another Award for Pain and Suffering

After a summary trial on June 23, 2008 pursuant to Rule 18-A (a rule that lets certain cases proceed to trial using affidavit’s as evidence instead of requiring the parties and witnesses to testify in person in court) reasons for judgement were released today awarding a Plaintiff $12,250.10 in compensation as a result of a 2005 Vancouver car crash.
This is another LVI case. The Plaintiff’s 1995 Honda Civic was rear-ended by a Ford F150 pickup truck. It was apparent that ‘this was a low impact collision’.
Many BC residents have received letters from ICBC telling them their claim has been denied based on ICBC’s LVI policy often referred to as ‘no-crash no cash’.
As is often the case, here the claim was brought to trial and the court recognized that an injury occurred despite the absence of significant vehicle damage. In reaching this conclusion Mr. Justice Williams made some useful comments about LVI crashes, specifically:

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

The court went on to find that the Plaintiff suffered injuries as follows:
[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.
$9,000 was awarded for pain and suffering, $2,031 for lost wages when she took time off work ‘to enable her to recover from her injuries’ and $1,219.10 in special damages (accident related out of pocket expenses).

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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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