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The Disclosure Conflict: Civil vs. Criminal Law

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

When a person at fault for a car crash is sued by the innocent victims and at the same time faces criminal charges as a result of the accident competing needs for records disclosure arise.
In the course of the criminal defence trial Canadian law requires disclosure of the facts the prosecution has gathered against the accused.  This information can be very useful to the Plaintiff in the civil suit against the at-fault motorist.  Is the Plaintiff advancing a Civil Injury Claim entitled to this disclosure or does the law limit this disclosure until the criminal trial concludes?
Reasons for judgement were released today by the BC Court of Appeal addressing disclosure rights when there are competing criminal and civil interests.
In today’s case (Wong v. Antunes) the Plaintiff’s son was struck and killed by a motor vehicle in 2005.  A civil lawsuit was started against the alleged driver Mr. Antunes.  At the same time the alleged driver was charged with ‘criminal negligence causing death’.
In the course of the criminal prosecution the Defendant was provided disclosure by Crown Counsel as required by Canadian law.   He refused to provide these documents to the Plaintiff in the civil lawsuit.  The Plaintiff brought a motion for production and largely succeeded.
The Attorney General for BC, the creator of the records, appealed this order. In allowing the appeal and in modifying the terms under which a civil litigant is entitled to disclosure of records produced in the prosecution of a criminal offence, the BC Court of Appeal held as follows:

[18] The case at bar is complicated, first, by Mr. Antunes’ refusal to even list the VPD documents as being in his possession and, second, by the Crown’s concern that some of the documents or information may jeopardize the on-going criminal proceedings.

[19] The chambers judge was alive to the problems associated with disclosure of the VPD documents.  It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 [“Wagg” cited to D.L.R.].

[20] Wagg bears some resemblance to the case before us.  It too concerned the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant.  In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights.

[21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49:

Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought.  Further, where the Crown or police resist production the court must be the final arbiter.

I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1.  The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.  Further, the Stinchcombe obligation on the police and Crown is very broad.  Subject to privilege the Crown must disclose all relevant information.  If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed.  Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant.  The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel’s disclosure obligations.

[22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17:

· the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

· the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

· the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information” (para. 51).

[23] The Attorney General identifies a number of practical problems created by the impugned order.  The Stinchcombe package is assembled by the Crown, not the VPD.  The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package.  More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced.  Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis.  The difficulty posed by effectively ordering disclosure of theStinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law.  Further, by failing to incorporate the public interest immunity claimed by the Crown in the order, it creates opportunities for unforeseen negative consequences.

[24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police — Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case.

[25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows:

ON THE APPLICATION of the [party], without a hearing and by consent;

THIS COURT ORDERS THAT:

1.         the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate (“the Police”) be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] (“the Incident”) and in particular file number [file number];

2.         the Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are:

(a)  any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice;

(b)  documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed:

(i)  could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a);

(ii)  could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance);

(iii)  could harm an ongoing statutory investigation or ongoing internal Police investigation;

(iv)  could reveal the identity of a confidential human source or compromises the safety or security of the source;

(v)  could reveal sensitive police investigation techniques; or

(vi)  could harm international relations, national defence or security or federal provincial relations;

(c)  protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute;

3.         the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2;

4.         the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address];

5.         the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein;

6.         any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records;

7.         within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police;

8.         any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order.

[26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff’s need to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.  Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise.

IV.        DISPOSITION

[27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered.

ICBC Injury Claims, Past Wage Loss and Income Tax

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Wage Loss, Uncategorized. 112 Comments on ICBC Injury Claims, Past Wage Loss and Income Tax

I normally don’t blog about tax law but in certain circumstances the interplay of tax law and personal injury law can have very significant consequences in ICBC Injury Claims.
If you are injured through the fault of another in a motor vehicle collision in BC and advance a tort claim for your past wage loss you need to be familiar with s. 98 of the Insurance (Vehicle) Act which limits past income loss awards to past ‘net’ income loss.
Serious injury claims usually take many years before making their way to trial, mostly because it is important for injuries to reach a point of maximum medical improvement before trying to value them.
As a result of this Plaintiffs with serious injuries such as brain or spinal cord injuries often have several years of past wage loss by the time their claim gets to trial.   How then, should s. 98 of the Insurance (Vehicle) Act operate for past wage loss in these circumstances?  Take the following example:
Imagine a Plaintiff who earned $50,000 per year had 4 years of income loss before his ICBC Injury Claim got to trial.  His gross income loss would be $200,000.  What would the net loss be?  Would it be the income tax on $200,000 at today’s rate or would the income be taxed at the lower rate (the taxes payable on a salary of $50,000 in each calaner year)?  
In a 2003 decision named Hudniuk, the BC Supreme Court stated that taxes must be assessed “as if the past income had all been earned at the effective date of the jury’s assessment namely, the first day of trial”  Since 2003 this approach has been generally accepted as being correct.  This approach, in my opinion, unfairly penalized Plaintiffs by taking an amount off their award for taxes far greater then what they actually would have paid in taxes had they earned the income year by year.  Fortunately, very important reasons were released today by the BC Court of Appeal (Lines v. Gordon) adding clarity to the application of section 98. 
In today’s case the BC Court of Appeal weighed in how s. 98 of the Insurance Vehicle Act should be applied.  In doing so the Court first reaffirmed the important principle in tort law that:
Damages should, so far as any monetary award can do so, restore the plaintiff to the position in which he would have stood but for the defendant’s wrongdoing. On this basis they should represent compensation for loss of earning capacity and not for loss of earnings. In a case of personal injuries, what the plaintiff has lost is the whole or part, as the case may be, of his natural capital equipment and to tax him on this is contrary to generally accepted principles of taxation.
The Court then went on to decide that the approach taken by the trial judge in Hudniuk was not inflexible and not appropriate in all circumstances and stated as follows:

[181]        Although the wording of ss. 95 and 98 contemplates the possibility of calculating net income loss for multiple periods between the date of the accident and the date of trial, it is my opinion that the Legislature did not intend to require in every case that gross past income loss be allocated to each of the calendar years between the date of the accident and the date of trial and to never allow net income loss to be calculated on the basis that the compensation for it was all received on the first day of trial.  If the Legislature had so intended, it would not have used the words “for any period” in the introductory portion of the s. 95 definition of “net income loss”.  Rather, if that had been the intention, the Legislature would have used words to the effect of “for each calendar year”.

[182]        In my opinion, the Legislature recognized that there may be difficulties in allocating gross income loss to particular periods between the date of the accident and the date of trial.  For example, as in Hudniuk, a jury may make a finding as to the gross income loss without being asked to allocate the loss to any calendar year or other period, and the judge may consider it inappropriate to speculate on the jury’s reasoning process.  The difficulty could be compounded if, again as in Hudniuk, the tax rules applicable to the income earned in a particular year are different from the tax rules applicable to the income allocated to that year.

[183]        Another example is a situation where the plaintiff was unemployed at the time of the accident and had no imminent prospects of employment.  The judge or jury could make an award for loss of past earning capacity, but it would be artificial to allocate it among different periods.

[184]        In my opinion, by the use of the phrase “for any period”, it was the intention of the Legislature to give a discretion to the judge to determine what period or periods are appropriate for the determination of net income loss in all of the circumstances.  In the two examples I have given, it would be appropriate for the judge to use only one period for the calculation of net income loss (namely, the entire period from the date of the accident to the first day of trial).  In such a case, net income loss would be calculated as if the gross income award was received by the plaintiff on the first day of trial.

[185]        By way of contrast to the two examples I have given, in the situation where, at the time of injury, the plaintiff was working at a job and returned to that job after sufficiently recovering from the injuries, it would be appropriate, absent any complications, for the judge to allocate the gross income loss to the calendar years between the date of the accident and the date of trial as if the plaintiff had continued working.  This would accord with the principle that, insofar as is possible, the plaintiff should be put in the position he or she would have been in if not for the injuries caused by the defendant’s negligence.

[186]        There will be a wide variety of circumstances facing trial judges.  In each case, the trial judge will have to decide whether it is appropriate in the circumstances before him or her to calculate net income loss on the basis of one period, calendar-year periods or other multiple periods.  In making a decision in this regard, the trial judge should consider all of the circumstances and apply s. 98 in a manner that is most consistent with the principles of damage assessment to which I have referred.

[187]        The application of s. 98 in jury trials should be consistent with its application in trials by judge alone.  The judge will typically consult with counsel as to whether the jury will be requested to only make an award for the gross amount of the loss of past earning capacity or to also make a finding of fact with respect to the net income loss prior to trial.  Whether the jury will be requested to provide a lump sum amount of the past gross income loss, or will be requested to provide periodic gross amounts, for use in calculating the net income award, will depend on the circumstances of the case.

[188]        In the present case, the plaintiff did not earn any income between the date of the accident and the date of trial, with the result that there is no complication of using different tax rules for actual and allocated income.  Although the trial judge made a global assessment of the past income loss, he specifically accepted a scenario which allocated projected income among the calendar years between the accident and the trial, and he then applied contingencies to arrive at the award he made.  In the circumstances, it is reasonable to infer that he applied the contingencies to the projected annual incomes on a pro rata basis.

[189]         In addition, it is apparent from the supplementary reasons for judgment that the trial judge felt constrained to follow what he understood to be the inflexible approach of Hudniuk in circumstances where he felt that approach diverted from the damage assessment principle that a plaintiff should be made whole.  It is reasonable to conclude, in my opinion, that if the judge appreciated that he had a discretion to allocate the gross income loss to more than one period, he would have allocated it to each of the calendar years between the accident and the trial on a pro rata basis according to the incomes projected in the scenario he accepted.

This case is certainly good news for any Plantiffs injured in BC motor vehicle collisions.  The flexibility the Court of Appeal has given trial judges in the applicaiton of s. 98 of the Insurance (Vehicle) Act will result in more fair assessments in past income loss by not penalizing plaintiff’s with a tax rate that they never would in reality be exposed to.

Another interesting highlight of this judgement was the Courts comments on past wage loss awards being in reality awards for a diminished capital asset, specifically the court said:

 

[172]        I have already alluded to the principle that past income loss is properly characterized as loss of past earning capacity or loss of a capital asset.  Mr. Justice Pitfield made a similar point when he made reference in para. 40 of Hudniuk to the fact that the jury award was an assessment of damages and not a mechanical calculation. 

[173]        Despite the fact that past income loss is an assessment of damages for loss of a capital asset, there is normally a correlation between the time worked by a person and the amount of income earned by them.  In the majority of personal injury cases, the plaintiff, at the time of the injury, will have been working at a job and will return to the same job when he or she has recovered sufficiently from the injury.  Although it is technically an assessment of damages for loss of capital asset, there is no suggestion that the plaintiff would have worked at a different job if he or she had not been injured, and the assessment of damages does involve a calculation of the income the plaintiff would have earned at the job had he or she not been injured.

BC Personal Injury Claims and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on BC Personal Injury Claims and the Duty to Mitigate

If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.
If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.
But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.
Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.

Ice, Snow and Your ICBC Personal Injury Claim

Written by admin on . Posted in ICBC Liability (fault) Cases. 47 Comments on Ice, Snow and Your ICBC Personal Injury Claim

It’s snowing heavily outside, our Christmas tree is lit and the the fire is going.  It’s a beautiful December evening in British Columbia unless of course you’re out in traffic.  With that in mind I’m republishing a post I originally wrote in April of this year on this ICBC injury claims blog:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

ICBC, Aggravation of Prior Injuries and "Failure to Mitigate"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding damages to a Plaintiff as a result of a 2003 rear-end accident.
In this case the court found that the Plaintiff ‘had significant problems with her neck and back prior to the 2003 collision…..that the collision markedly aggravated her pre-existing condition. Her level of functioning has gradually improved between the time of the collision and the time of the trial….(although) she continues to suffer greater pain and disability than she did before the collision.‘
In valuing the Plaintiff’s accident related pain and suffering at $50,000, the court made the following findings:
It is clear that Ms. Antoniali was suffering from a previous injury to her back and neck at the time of the November 2003 collision. I am satisfied that the November collision caused substantial new or aggravated injury to Ms. Antoniali’s lower and mid back. She has suffered substantial disability, pain and suffering for the approximately four and one-half years since the collision. She has not been able to engage in most of the recreational pursuits that she engaged in before the collision. Her enjoyment of her new role as a mother has been negatively impacted. However, not all of the pain and disability she suffered during this period was attributable to the November collision. In the absence of the new injury she suffered in that collision she would have been troubled by the likely continuation of her pre-collision back and neck difficulties. I am satisfied that an award of $50,000 for non-pecuniary general damages for her collision related injuries, both past and future, is appropriate to reflect her loss. I assign those damages approximately equally to the pre-trial and post-trial periods.
In addition to interesting comments made about the aggravation of pre-existing injuries, the court made some key findings regarding ‘failure to mitigate’.
When a person is injured in a BC car crash and makes and ICBC tort claim, that person has a duty to take reasonable steps to minimize their losses. This is called the ‘duty to mitigate’. In this case the court found that the Plaintiff did fail to mitigate her losses and reduced some of her damages by up to 50% as a result of this failure. The key finding fueling this decision was that the Plaintiff’s symptoms would have been lessened had she followed the recommended program of stretching and exercises recommended by her physician.
In discussing the law of failure to mitigate Mr. Justice Preston referenced some well known passages canvassing this area of the law – for your convenience I will reproduce these below:
From Graham v. Rogers

Mitigation goes to limit recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss. A plaintiff in a personal injury action has a positive duty to mitigate but if a defendant’s position is that a plaintiff could reasonably have avoided some part of the loss, the defendant bears the onus of proof on that issue.

From Humphrey v. Rancier Estate

Another issue in assessment of damages, both non-pecuniary and pecuniary, is the plaintiff’s alleged failure to mitigate. The plaintiff has followed all her medical advice with the exception of reducing her weight. She was grossly obese before the accident, weighing about 260 pounds; she is not quite five feet tall. She now weighs over 200 pounds and continues to be grossly obese. There is no doubt on the medical evidence and the evidence of the therapists that her disability and pain would be less if she lost a considerable amount of weight.

The question is whether the plaintiff has taken reasonable steps to minimize her loss. The court must assess whether this test has been met by looking at all the circumstances of the case. Here we have an obese lady before the accident – someone who had been obese all her adult life. Her brother and sister are both obese. She appears, as her counsel put it, to be a weak woman in the sense that she has not had very good success at controlling her smoking or her eating on a consistent basis in the past despite medical advice and despite her clear efforts. She has tried to lose weight and has succeeded to an extent, at least temporarily. She is still trying, she says.

Of equal importance to the principle that the plaintiff must act reasonably in minimizing her loss and her damages, is another principle, namely that the defendant takes his victim as he finds him or her. In the circumstances in this case, given the plaintiff’s pre-accident history of obesity, given her particular personality, given her honest efforts from time to time to lose weight and kept it off, I am not satisfied that it can be said that the plaintiff has acted unreasonably and has failed to mitigate her damages, with the result that her damages should be lessened because she has not lost weight.

From Sagave v. Townsend

A defendant who injures a plaintiff is not entitled to expect perfection from the injured person in pursuing rehabilitation. The plaintiff must be reasonable and sincere in her efforts to promote recovery. The plaintiff was less than perfect, and undoubtedly paid a price in pain and discomfort on occasion. I accept however the plaintiff met a reasonable standard of care concerning exercise with regard to her own rehabilitation.

The defendant has not met the onus of proof required for the plaintiff to be found to have contributed to her own damages. In the assessment of her non-pecuniary damages however I have taken account of the need for the plaintiff to follow an almost daily regime in the future and assumed she will benefit accordingly.

This case serves as a striking example that an unreasonable failure to follow medical advice can have a severe impact on an ICBC claim. Here the Plaintiff’s awards for post trial pain and suffering, post trial loss of earning capacity and post trial cost of medical care were reduced by 50%!