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BC Court of Appeal Dismisses "Black Ice" Claim

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 47 Comments on BC Court of Appeal Dismisses "Black Ice" Claim

Today reasons for judgment were released by the BC Court of Appeal dismissing the appeal of a very seriously injured Plaintiff who was involved in a single vehicle collision in 1998.
The Plaintiff was involved in a terrible motor vehicle accident. While driving from Tsawwassen to Vancouver on a January morning, his vehicle “left the road and overturned in the adjacent field. (he was) seriously and permanently injured, and had no recollection of the accident”.
There were, unfortunately, no witnesses to the accident itself.
When advancing a personal injury tort claim in BC, the Plaintiff has the burden of proof to prove why someone else is at fault for the accident. That is certainly difficult if the accident results in injuries that are so serious that they leave a person ‘with no recollection’ and even more difficult if there are no witnesses.
The Plaintiff sued the Ministry of Transportation and Highways and the contractor responsible for that particular stretch of roadway. The allegation was that they failed to adequately perform their maintenence duties. In other words, saying they should have and could have removed black ice from the scene of the accident.
The trial judge concluded that the Plaintiff failed to prove that the accident was caused by black ice and the claim was dismissed. The BC Court of Appeal dismissed the appeal concluding that “the trial judge made none of the errors alleged (on appeal). His findings of fact were well supported by the evidence.”
In reaching this conclusion the Court stated that:
The trial judge made no error by failing to compare the relative probability of black ice and an animal on the highway, or other circumstances, as explanations for the accident. He considered the evidence for and against the appellant’s theory and determined that he had not proven, on the balance of probabilities, the essential fact that black ice was present on the highway, and therefore could not prove causation. The trial judge was under no obligation to compare the relative probabilities of the theories, and his conclusion would not have differed had he done so.
The Court does a good job in discussing the burden of proof in personal injury tort claims in BC. This case is a strong illustration of the fact that Plaintiff’s must prove, on a balance of probabilities, that someone else is at fault for their injureis to succeed in a tort claim in BC.
This case is certainly worth reading for anyone advancing a claim against the Ministry of Highways in BC alleging that they or their contractors failed to safely maintian the roads under their watch.

More on Examinations for Discovery and Your ICBC Claim

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Earlier this month I blogged about the Examination for Discovery process under the BC Supreme Court rules as it relates to ICBC claims. I summarized 14 broad categories that are generally canvassed by ICBC defence lawyers during the examination for discovery process.
Each discovery is unique and an effective examination is much an art as it is a science. I can’t readily blog about all the subtle tricks of the trade that I have seen used at discoveries but I can write a little more about the ‘bread and butter’ topics that are covered at discoveries.
The Law Society of BC (the organization that governs and regulates the practice of law in BC) publishes “Practice Support Checklists Manuals” on their website. These practice manuals are “are intended as a professional reference for BC lawyers only” and are published with the following warning:

The authors of the checklists have assumed that lawyers will exercise their professional judgement respecting the correctness and applicability of the material. Checklists and forms should be used only as an initial reference point. Reliance on them to the exclusion of other resources is imprudent, as conduct of each file depends on its own particular circumstances and instructions of the client.

The practice checklists should be used only as a secondary reference. For definitive answers, lawyers should refer to applicable statutes, regulations, practice directions and case law.
The Law Society of British Columbia, the Continuing Legal Education Society of British Columbia and the authors and editors of the manual accept no responsibility for any errors or omissions, and expressly disclaim any such responsibility.
With that legalese out of the way, I write this blog to point out that one of the Practice Manuals printed by the Law Society provide a checklist for defence lawyers conducting an examination for discovery of a Plaintiff in a car accident claim (and the same is used for ICBC claims plaintiff lawyers for their initial client interviews).
This manual is a great guide to give anyone facing an examination for discovery in an ICBC claim a general sense of the types of questions the lawyer may ask them.
For the convenience of my readers I have reproduced this manual below.
I point out that this manual should not be substituted for good legal advice regarding an ICBC claim, I simply reproduce this to give my readers a sense of the types of topics that may be covered during an examination for discovery in an ICBC claim.
_________________________________________________________________________________________________________

 

INTRODUCTION

Purpose and currency of checklist.

The checklist should only be used as a guideline as the nature and scope of the interview and the examination for discovery in each case are matters for your own professional judgment. Some of what follows may be appropriate for an interview but would be objectionable on an examination for discovery (e.g., prior driving record). The interview may be wide-ranging and directed to information gathering. The examination for discovery is a cross-examination and must be relevant to the pleadings.

The general framework of this checklist is relevant to most personal injury litigation; however, parts are oriented particularly toward motor vehicle accident litigation. If you use this checklist for other types of personal injury litigation, you will need to modify items 1.6 through 4.14.

New developments:

·1

Client Identification. New Law Society Rules regarding Client Identification and Verification are expected to come into effect on November 1, 2008. These new “know-your-client” Rules, generally based on the Federation of Law Societies of Canada Model Rule (http://www.flsc.ca/), represent a continuation of the legal profession’s initiatives against money laundering. All Canadian law societies are expected to adopt similar Rules in 2008.

Additional resources.

See also Introducing Evidence at Trial: A British Columbia Handbook (CLEBC, 2007); Discovery Practice in British Columbia, 2nd ed., looseleaf (CLEBC, 2004); British Columbia Motor Vehicle Accident Claims Practice Manual, 2nd ed., looseleaf (CLEBC, 2000); British Columbia Civil Trial Handbook, 2nd ed. (CLEBC, 2005); Personal Injury for Legal Support Staff —2006 Update (CLEBC, 2006); Personal Injury for Legal Support Staff (CLEBC, 2003); Personal Injury Conference—2005 (CLEBC, 2005); Defending Personal Injury (CLEBC, 2006); and Personal Injury: Advanced Issues (CLEBC, 2004).

 

  

CONTENTS

 

  
1. The Plaintiff—Personal Information
2. The Car
3. The Accident
4. At the Scene of the Accident
5. Injuries Sustained by the Plaintiff
6. Practical Consequences of Injuries
7. Plaintiff’s Medical History
8. Treatment of Plaintiff’s Injuries
9. Potential Defendants
10. Damages
11. Other Charges and Claims
 		  

CHECKLIST

 

  
1. THE PLAINTIFF—PERSONAL INFORMATION
  

1.1 Name, address, phone numbers, e-mail address, occupation, employer or school, social insurance number.

  

1.2 Personal history: birth date and place, height, weight, marital status, date and place of marriage, spouse, parents, children, dependents, previous residences for last 10 years, education, medical coverage.

  

1.3 Whether spouse is employed and, if so, the details.

  

1.4 Employment history: name, address and phone number of current employer, job title and duties, length of employment with that employer, name of immediate supervisor, remuneration (full history), hours regularly worked (and overtime), typical duties and responsibilities, future prospects, benefits (medical and dental plans, life insurance, pension, paid vacation, employer’s contribution to employment insurance (“EI”), free board and lodging, investment options, company car, union or Workers’ Compensation Board (“WCB”) involvement, paid sick leave, etc.); same details regarding previous employment, including why plaintiff left. Obtain details of any WCB claims or periods of sick leave. Request appropriate employment documents and authorizations. Obtain the name of the union and a copy of the collective agreement to determine validity of a claim for collateral benefits or other employment benefits. Obtain particulars and a copy of policy for any disability insurance for the same reasons.

  

1.5 Insurance coverage: company, claim number, name of adjuster, type of insurance, any statement made by plaintiff.

  

1.6 Driver’s licence: class, how long plaintiff has had it, any restrictions (and, if so, whether they were complied with), whether licence has been suspended for any reason in the past, prior convictions.

  

1.7 Whether plaintiff is an experienced driver and whether plaintiff has previously been involved in any accident.

  
2. THE CAR
  

2.1 Owner. If plaintiff was driver but not the owner, how did plaintiff come to be driving the car? Insurance details of vehicle owner.

  

2.2 Type of car: year, make, standard or automatic, licence number.

  

2.3 General mechanical condition and details regarding condition of brakes, steering, tires and, where relevant, head and tail lights, signal lights, horn, windshield, windows etc., including when they were last checked, and whether there have been any previous problems.

  
3. THE ACCIDENT
  

3.1 Date, time, location.

  

3.2 Plaintiff’s pre-accident condition (e.g., illness or disability affecting driving, alcohol or drug consumption, physical condition, whether tired or distracted, last sleep, day’s activities).

  

3.3 Further details about vehicles and parties involved, such as: names, addresses and phone numbers of drivers, owners, passengers, pedestrians, witnesses; types and conditions of other vehicles. Details of other driver’s insurance.

  

3.4 Road, traffic, and weather conditions, such as: time of day; lighting and visibility; position of sun; road condition; characteristics of accident location (e.g., width of road, number of lanes, straight or curved, center marking, intersections, traffic controls, pedestrian crossing areas, parked cars, any obstructions to vision).

  

3.5 Whether headlights, windshield wipers, heater, defroster, or radio were on; whether windshield was clear; whether sunvisor was being used; whether plaintiff was wearing sunglasses.

  

3.6 Whether plaintiff was wearing glasses and, if so, whether this was required under driver’s licence, and when prescription was last checked.

  

3.7 Whether plaintiff was wearing a seat belt. If so, type and was it snugly fastened? If not wearing a belt, consider information defendant may use for seat belt defence expert opinion (height, weight, body shape, torso length, clothing, type of belt). Whether there was a headrest. If so, was it adjusted for the plaintiff’s height?

  

3.8 Where plaintiff was going; point and time of departure; destination; route; familiarity with route and location; purpose of travel; whether working; whether in a hurry.

  

3.9 Details about the accident, such as: location and direction of travel of each party involved; speed at which each was travelling before accident and whether there was any slowing down or acceleration; when other vehicle was first seen; any opportunity for evasive action by either vehicle and, if so, whether it was taken; elapsed time between sight and impact; movement of other vehicle during this time; point of impact; how far vehicles travelled after impact; skid marks; location of damage to vehicles; damage to interior of plaintiff’s vehicle; deployment of air bag. Whether plaintiff’s attention was diverted for any reason, for example, was plaintiff distracted by children or other passengers, changing a radio setting, changing tapes/CD, operating a blackberry or mp3 player, or speaking on the cellular phone, etc.

  

3.10 Whether there was anyone or anything else in the car (e.g., passengers, animals, luggage). If so, where, and what happened to them or it?

  

3.11 What happened to plaintiff, including: bracing before impact; plaintiff’s impact inside the vehicle; head struck or head being thrown backwards.

  

3.12 Damage to all vehicles (location, type, severity).

  

3.13 Injuries to other parties.

  

3.14 Any other information about other parties (e.g., insurance).

  

3.15 Evidence, such as statements, sketches, available photographs, copy of police report, repair estimate.

  
4. AT THE SCENE OF THE ACCIDENT AND AFTERMATH
  

4.1 Plaintiff’s injuries, specifying location and type.

  

4.2 Plaintiff’s state of consciousness, including feelings of dizziness or disorientation; plaintiff’s emotional state.

  

4.3 Whether plaintiff realized at the time that he or she had been injured and, if so, how.

  

4.4 Whether any of plaintiff’s clothing or other personal property was damaged.

  

4.5 What plaintiff did after impact.

  

4.6 Full particulars of any treatment at the scene, including when given, by whom, type of treatment.

  

4.7 Whether police or fire department were called and, if so, details of this, their arrival, actions, and any discussions with them.

  

4.8 Whether ambulance was called and, if so, details of this, its arrival, what happened after that, and any discussions with attendants.

  

4.9 Full particulars of any conversations involved in or overheard at the scene.

  

4.10 Full particulars of any written statements given.

  

4.11 Whether plaintiff complained of any physical injuries at the time and, if so, details of this.

  

4.12 Whether anyone helped plaintiff from the car, plaintiff could walk unassisted, or a stretcher was used.

  

4.13 Whether plaintiff was treated in emergency; what treatment including:
x-rays; medication prescribed or given; length of stay in hospital before being released; name, address, and phone number of attending doctor.

  

4.14 Names, addresses, and telephone numbers of witnesses to the accident.

  
5. INJURIES SUSTAINED BY THE PLAINTIFF
  

5.1 Specific injuries: any pain, bruising, numbness, tingling, or clicking in ears or jaw, eyes, head, jaw, neck, shoulders, back, arms, chest, hands, fingers, toes, legs, hips, buttocks, knees, abdomen, other. Specify exact location and nature of pain, numbness, tingling, or clicking. Specify when problem began and how long it has lasted, whether constant or intermittent. Specify whether particular activities cause aggravation. Go through the injuries from head to toes, so none are omitted.

  

5.2 Other pain and health problems, such as: headaches, lack of concentration, memory problems, blurred vision, light sensitivity, fainting, dizziness, nausea, ringing in ears. Specify when problem began and how long it has lasted.

  

5.3 Need for any of the following: cane, crutches, wheelchair, orthopedic supports, trusses, back or neck brace, cervical collar, traction, other. Specify duration and frequency of use, place where used, who prescribed it.

  

5.4 Need for ongoing treatment including physiotherapy (see item 8). What medication has been prescribed, and what medication the plaintiff is taking.

  

5.5 Adverse reaction to medicine, anaesthetics, etc. Specify symptoms.

  

5.6 Changes in appearance, such as: limp, weight gain or loss, scars (specify size, location, whether permanent), other disfigurements.

  

5.7 Changes in emotional or psychological state, such as: tearful, angry, depressed, tired, happy, sleepy, nightmares, intrusive thoughts, insomniac, bored, discouraged, hopeful, afraid, need for psychological or psychiatric treatment, etc.

  

5.8 Whether plaintiff feels that any of the above have caused changes in appearance, dress, etc., or the way others perceive him or her (i.e., self-image).

  

5.9 Consider interviewing close family member or other witnesses regarding the effects of the injuries.

  

5.10 Obtain authorizations and request records of all medical practitioners who have treated the plaintiff. Consider request for MSP records.

  
6. PRACTICAL CONSEQUENCES OF INJURIES
  

6.1 Effect on employment:

  

.1 Whether plaintiff can still do same type of work.

  

.2 Whether plaintiff returned immediately to work. If not, why not, how much time lost, whether doctor or anyone else advised plaintiff not to return to work, loss of holiday benefits, loss of sick days, whether sick days can be accumulated and paid out.

  

.3 Whether short- or long-term benefits and whether insurer has subrogated right of recovery.

  

.4 Any adverse effect on employment, future earning capacity, long-term career plans.

  

.5 Whether required to take early retirement or suffered loss of seniority rights or employment benefits.

  

.6 Has plaintiff been accommodated at work by being assigned lesser duties?

  

.7 Get full particulars of income loss. Consider contingencies such as opportunities for advancement, alternative opportunities, supply and demand for skills. Also, whether doing the same work now involves extreme, moderate, slight or no pain.

  

.8 For a student, consider loss of or set-back in education.

  

.9 Discuss mitigation efforts (e.g., if plaintiff has had to seek new employment, what efforts were made and what responses were received).

  

.10 Consider whether less employable for all types of employment even if able to continue with same employment.

  

6.2 Effect on business:

  

.1 Whether additional employees hired to replace plaintiff, or whether business has been adversely affected (if so, why and in what way).

  

.2 Get full particulars of income loss; get plaintiff’s income tax returns and records, including business records relating to productivity, etc., as well as statements and books of account, accountant’s files, bank statements and cancelled cheques, plaintiff’s files including correspondence.

  

6.3 Effect on domestic and recreational activities:

  

.1 Whether plaintiff did them before the accident, frequency before, whether plaintiff can do them now and, if so, whether this involves extreme, moderate, slight or no pain. Examples are: lift heavy objects; drive automobile, truck, motorcycle; ride bicycle; work on auto; shovel snow; mow lawn; garden; kneel down, squat down; walk, jog, run, dance, do exercises; enjoy sexual relations; do home repairs, saw/chop wood, do wallpapering, paint walls/ceiling; lift children; do grocery shopping; make beds, do laundry, scrub floors, vacuum, cook, dust, sew;

  

use lower/higher shelves; wear high-heeled shoes; turn head to look behind when driving, put chin on chest, hold phone with shoulder, sit in bathtub with legs outstretched, sit on floor/grass/low furniture; play tennis, baseball, football, basketball, golf, etc.; hunt, fish, ride, climb mountains, etc.; snow/water ski, swim, other sports and hobbies; enjoy social life.

  

.2 Specify any other ways in which capacity to enjoy life has been affected. Which activities have been resumed or attempted?

  

.3 What vacations have been taken, delayed or cancelled?

  

6.4 Bear in mind any other special considerations such as the possibility of marriage and child bearing.

  

6.5 Expenses related to the accident, including damage to personal property, prescriptions, taxis, mileage, lost membership, etc. Obtain details of payment, whether paid by plaintiff or third party. If third party, who and on what basis.

  

6.6 Retraining, rehabilitation, or vocational counselling undertaken.

  

6.7 Obtain details of any services provided by family members or others for which the plaintiff might advance a claim and the actual cost of any such services if incurred. Determine who provided services, the number of hours spent by them, whether they had to leave a job in order to provide the services and whether these services went beyond what would be expected of a family member.

  

6.8 Obtain details of disability insurance plan and benefits received.

  
7. PLAINTIFF’S MEDICAL HISTORY
  

7.1 Plaintiff’s previous illnesses and conditions requiring medical treatment; attending physician; date; nature of illness and its duration. Include hospitalization, accidents, injuries, alternative health care.

  

7.2 Whether plaintiff has any chronic health problems.

  

7.3 Whether plaintiff used any medication/drugs regularly before the accident.

  

7.4 Whether plaintiff has ever made a previous claim for damages related to an accident or injury (in a legal action, or under Workers Compensation Act, R.S.B.C. 1996, c. 492, etc.). Get details, including outcome and consider obtaining documentation such as medical legal reports, pleadings, orders and releases.

  

7.5 Whether plaintiff has been a recipient of disability benefits (e.g., CPP benefits); obtain details of plan and benefits.

  

7.6 Whether plaintiff has ever had any insurance denied or cancelled.

  

7.7 Whether plaintiff believes present accident has aggravated an old injury or illness. Get details.

  

7.8 Whether plaintiff had physical examinations in the five years prior to the accident and, if so: date, doctor, purpose of examination.

  

7.9 Pre-accident clinical records from any relevant health care professionals if plaintiff has a previous history of injury.

  

7.10 Whether the plaintiff has had any previous psychological or psychiatric treatment for depression, anxiety, etc.

  

7.11 Whether there have been any intervening medical conditions or accidents in the post-accident period.

  

7.12 Whether plaintiff has a history of changing doctors frequently and why.

  

7.13 Post-accident clinical records.

  
8. TREATMENT OF PLAINTIFF’S INJURIES
  

8.1 Treating institutions: names, addresses, types of institution, dates of visits or stays, complaints.

  

8.2 Treating physicians, chiropractors, physiotherapists and other health care professionals giving treatment of any nature (including alternative medicine): names, addresses, specializations, dates of visits, complaints.

  

8.3 Diagnosis and prognosis of each person giving treatment each time plaintiff was examined.

  

8.4 Place and date of x-rays, MRIs, CT scans, tomographs, etc.

  

8.5 All medications (including alternative medications) prescribed or taken.

  

8.6 Future surgeries planned, future appointments set, prognosis if given.

  
9. POTENTIAL DEFENDANTS
  

9.1 Get details enabling you to identify potential defendants (e.g., consider facts that might establish vicarious liability). Consider whether province, municipality, physicians, or others might be defendants.

  

9.2 Get names, addresses, phone numbers, details of their insurance, if possible.

  
10. DAMAGES
  

10.1 Car: age, mileage; cost of car and improvements; condition before accident; damage; whether car can be repaired; whether car has been repaired; invoices and estimates. Consider whether issue of accelerated depreciation arises.

  

10.2 Damages incidental to damage to car, such as cost of renting another car while repairs are being made, and any cost of repair not covered by insurance (e.g., insurance deductible).

  

10.3 Damage to other property, such as clothing and contents of car.

  

10.4 Medical expenses.

  

10.5 Other damages incidental to personal injury, such as economic loss and loss of enjoyment of life (see item 6).

  

10.6 Obtain receipts for all expenses.

  
11. OTHER CHARGES AND CLAIMS
  

11.1 Whether criminal or quasi-criminal charges have been laid against any of the parties. If so, obtain copies of police file and trial transcripts.

  

11.2 Whether an ICBC claim has been filed and, if so, identify claims centre, claim number, and adjuster. Whether any benefits under Part 7 of the Revised Regulation Under the Insurance (Vehicle) Act, claimed and/or received. What documents given to or signed for ICBC, and any advances paid.

  

11.3 Whether there is a WCB claim (if accident arose out of and in the course of employment: Workers Compensation Act, ss. 5 and 10).

  

11.4 Whether obligation to repay or make claim for the benefit of an employer or insurer (i.e., a subrogated claim), short- or long-term benefits.

  

11.5 Obtain copies of any documents relating to ICBC claims, Part 7 benefits, WCB records, etc.

  

11.6 If there were previous accidents or WCB claims, obtain pleadings for any claims commenced and copies of any settlement documents including orders or releases.

  
12. CREDIBILITY
  

12.1 In proceeding through the interview/examination for discovery, it is important to assess your client/opposing party as a witness. This may be as simple as considering whether the person appears honest, but also may include whether the witness makes a good impression, is verbose or reticent, is nervous, is argumentative, is a poor historian, etc.

  

12.2 Consider what steps will be required to prepare your own client, including a mock examination, discussion of behaviours, etc.

12.3 In preparing to examine an opposing party, consider the most effective approach to be taken. For example, you may start with general questions and then narrow to the specific. You may also consider if and when to confront the witness with documents such as medical records or income tax returns.

  

Do you have questions about an ICBC Injury Claim or examinations for discovery?  Do you need legal advice from an ICBC claims lawyer?  If so click here for your free consultation with Victoria ICBC Claims Lawyer Erik Magraken (Services provided throughout BC!)

Court "Costs" and Your ICBC Injury Claim

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Reasons for judgment were released by the BC Supreme Court yesterday awarding a Plaintiff in a BC personal injury claim “costs” despite the fact that the Plaintiff’s award was within the small claims court jurisdiction.
This case gave me a good opportunity to write a little bit about the “costs’ consequences of bringing ICBC claims to trial and I intend to make this the first of several blog entries on this topic.
If you make an ICBC claim in BC Supreme Court and win (winning meaning you obtain a judgment in your favour greater than an ICBC formal settlement offer) you are generally entitled to ‘costs’ in addition to your award of damages.
For example, if a plaintiff with soft tissue injuries brings an ICBC claim to trial and is awarded $30,000 and ICBC’s formal settlement offer was $10,000, the Plaintiff would be entitled to “Costs” in addition to the $30,000 (barring any unusual developments at trial).
The purpose of awarding the winner Costs is to compensate them for having to go through the formal court process to get what is fair. This recognzes the fact that there are legal fees involved in bringing most ICBC claims to trial and one of the purposes of Costs is to off-set these to an extent.
Costs cover 2 different items, the first being disbursements (meaning the actual out of pocket costs of preparing a lawsuit for trial such as court filing fees and doctor’s fees in preparing medical reports) and the second being Tarriff costs – meaning compensation for many of the acutal steps in bringing a lawsuit in BC Supreme Court.
The Costs consequences after a BC Supreme Court Trial could easily be in the tens of thousands of dollars and this is often the case in many ICBC claims.
Costs are discussed in Rule 57 of the BC Supreme Court Rules and this rule is worth reviewing for anyone bringing an ICBC claim to trial in the BC Supreme Court. The winner does not always get their costs, however. One of the situations when a winner may not get their costs is when they are awarded an amount of money that was in the small claims court jurisdiction ($25,000 or less).
Rule 57(10) states that “A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.”
As a result of this sub-rule, people who bring an ICBC claim to trial in BC Supreme Court and are awarded less than $25,000, may be disentitled to their Tariff Costs unless they can show ‘sufficient reason for bringing the proceeding in the Supreme Court.”
In this weeks judgement the court agreed that despite the fact that the Plaintiff was awarded $12,290 in damages (an award well within the small claims court jurisdiction), the Plaintiff did have sufficient reason to bring the proceedings in Supreme Court.
In reaching this decision the court referred to a leading BC Court of Appeal Case where it was held that “a Plaintiff does not have an on-going obligation to assess the quantum (value) of a claim and that the point in time for a consideration of whether a plaintiff had a sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
The lawyer for the Plaintiff argued that when the lawsuit was started they were not in a position to finalize their valuation of this claim becase they did nothave a final medical report commenting on the plaintiff’s injuries. Also that since the Defendant took an LVI (low velocity impact) position it was important to sue in Supreme Court to have an examination for discovery of the Defendant (a procedure not available in small claims court).
For those and other reasons the court agreed and awarded the Plaintiff her Tariff Costs.
Do you have questions about an ICBC Claim, or BC Court Costs that you wish to discuss with an ICBC claims lawyer? If so click here to arrange your free consultation with Victoria ICBC Claims Lawyer Erik Magraken.

$45,000 Awarded to Plaintiff for Post Accident Headaches

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

After a 13 day trial in Vancouver, BC,  reasons for judgement were released yesterday awarding a Plaintiff $45,000 plus special damages (out of pocket expenses for treatment of injuries) as a result of a 2001 BC car accident.  This was a ‘headache claim’ and the primary issues were whether the Plaintiff’s headaches were caused by the BC car accident and if so, how much money the injury claim was worth.
At trial the BC personal injury lawyers on opposing sides were miles apart in their view of the value of the case in their submissions to the court.  The Plaintiff’s lawyer alleged permanent impairment of her capacity to earn income and sought damages in excess of $900,000.  The personal injury lawyers defending the claim responded that the Plaintiff only suffered from mild soft tissue injuries and that damages between $10,000 – $20,000 were appropriate. 
It is quite common for lawyers on opposing sides of ICBC claims to take very different positions at trial  and this case is a good example of how far apart 2 sides to an ICBC claim can be.  In this case the Plaintiff presented a case of chronic headaches which interfered with tasks of daily living including work.  The defence lawyers presented a case alleging mild soft tissue injury with headaches resolving a short time after the accident.  At the end of the trial the court largely sided with the defence lawyer’s position. 
The Plaintiff was 19 at the time of the accident.  As she was driving the defendant turned left directly in front of her lane of travel.  She had the right of way.  She had time to step on the brake and the clutch of her vehicle, shift into neutral and brace herself for the impact.   The accident was described as a t-bone collision by the Plaintiff although the court noted that the front left portion of the Plaintiff’s car struck the driver’s side door of the other vehicle in this BC car accident claim.
As is often the case in ICBC claims alleging an ‘impaired earning capacity‘ due to a BC motor vehicle accident, the court heard from a variety of doctors as ‘expert witnesses’.
Dr. Robinson, a neurologist who specializes in headache disorders, testified on behalf of the Plaintiff.  He stated that her headaches ‘have features consistent with a diagnosis of chronic post-traumatic headache of a migrainous type.’
Dr. Chu, a physiatrist (specialist in physical medicine and rehabilitation) testified that the accident “is the direct cause of (the plaintiff’s) mechanical left upper neck pain.  This in turn is the cause of her secondary cervicogenic headaches”
Dr. Vincent, a cutting edge specialist in Anaesthesiology and Interventional Pain Medicine, also testified and gave evidence which ended up largely supporting the Defendant’s position.  Dr. Vincent injected anaesthetic medications into the Plaintiff’s neck on two occasions.  Unfortunately neither of the injections relieved the Plaintiff’s headache.  After a rigorous cross-examination Dr. Vincent testified that the Plaintiff’s results were inconsistent with a ‘causal relationship between an injury…to the neck and the headaches the Plaintiff experiences.”
The defence lawyer relied on the opinion of Dr. Jones, a neurologist, who testified that the Plaintiff’s headaches are ‘true migraines that have arisen spontaneously and are unrelated to any injury to her neck or cervical spine’.
The court preferred the evidence of Dr. Jones.  The court found that the BC accident ‘did cause an exacerbation of (pre-existing) headaches’ and that ‘those headaches largely resolved and (the Plaintiff) had returned to her pre-accident state of health within approximately 10 months following the accident.‘
The court found that there were problems with the Plaintiff’s evidence and that her present recall of symptoms in the months after the accident was ‘unreliable’.  The ultimate finding was that all of the Plaintiff’s headaches sinced 2002 were ‘primarily migraine headaches that she would have developed (even without the accident)’.
The court awarded $45,000 for pain and suffering and the Plaintiff’s special damages up to March 16, 2002.
This case is a great example of the different positions opposing lawyers can take in court in an ICBC claim and results such as this one should be reviewed when in settlement negotiations with ICBC for a ‘headache’ claim as a result of a car accident.
Do you have questions about this case or an ICBC headache claim?  Are you looking for a free consultation with a ICBC claims lawyer?  If so click here to arrange a free consulation with ICBC claims lawyer Erik Magraken.

Examinations for Discovery and Your ICBC Claim

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If you are advancing an ICBC injury claim and started a court action in BC Supreme Court you may very well have to go through an ‘examination for discovery’. I have received numerous questions about the discovery process from people involved in ICBC claims through this website and thought I would summarize some of my comments in the below blog.
The usual summary I give when explaining what an examination for discovery (XFD) is to people who are not familiar with the term is to think about a ‘deposition’ as often depicted on TV legal dramas. In essence, a discovery is a pre-trial step in which the opposing lawyers get to ask a party to a lawsuit questions about the claim.
The rules of court governing the prosecution of civil (legal actions between two private citizens) claims requires disclosure of key facts and circumstances prior to a trial. In the context of ICBC claims, the discovery process permits the other lawyer to question a plaintiff about the accident and injuries, the effects of them on the plaintiff’s life and the financial losses that are being claimed.
Examinations for discovery are conducted under oath (or affirmation) and are conducted before a court reporter. This is not a formal process conducted before a judge, rather, it usually occurs in a business office owned and operated by private court reporters. The court reporter records the questions and answers.
There are 2 very broad purposes to examinations for discovery. The first is to learn all about the other side’s case. That is, to get the Plaintiff’s evidence first hand and in person regarding the accident and injuries. This helps the other lawyer weigh the credibility and reliability of the Plaintiff and to make an assessment of whether the Plaintiff will present well in court.
The second purpose is to damage the other sides case. A lawyer conducting a discovery has the right to use the questions and answers that he/she likes and to read these into the trial record should the claim proceed to court. For this reason it is essential that anybody advancing an ICBC claim is very well prepared prior to attending an examination for discovery. Any answer given that is harmful can and likely will be used by the other lawyer to harm the case should it proceed to trial.
For an example of how an answer at an examination for discovery can harm an ICBC claim just read the recent judgment of Yapyuco v. Paul, where Mr. Justice Curtis dismissed the Plaintiff’s claim in large part due to the answers given at her examination for discovery.
Preparation for discovery is a lengthy process and I can’t summarize all the useful advice as to how best to conduct oneself in a discovery in this short blog. I will, however, point out some of the typical things canvassed at discoveries of ICBC claims below.
Normally, a Plaintiff in an ICBC claim is questioned about the 14 below categories (I should point out that discoveries at ICBC claims are not limited to these categories, these are simply general categories of questions that often come up)
1. Your Personal History – such as name, age, date of birth, place of birth and family members details
2. Your Educational History – including all levels of education and academic accomplishments
3. Your work history including contact information for all employers
4. Your plans preceding the accident in terms of personal life and vocation
5. How these plans changed as a result of the accident
6. How the accident happened including details of speed, weather, lighting, distances and all injuries sustained in the accident
7. The course of treatment taken after the accident including the names of all doctors and therapists
8. Changes in lifestyle as a result of the accident including social, recrational , family, personal and employment changes. Addressing employment usually details of lost wages or wage earninng opportunities are canvassed as well.
9. Medical and personal status prior to the accident
10. Present condition and limitations
11. Present plans for employment and whether there are any restrictions on employment
12. Future plans for treatment
13. Details of activities that have been affected by the accident related injuries
14. The details of a typical day and what it is like to live with the injuries.
No 2 discoveries are alike and I stress again that the above is nether an exhastive list of the types of questions asked at discoveries involving ICBC claims nor are all of the above categories always covered at discoveries for ICBC claims.
Assuming you have hired a lawyer to assist you with your ICBC claim he/she will be present at the discovery and will object to any inappropriate questions posed by the other lawyer. If the discovery is conducted professionally by the ICBC lawyer the objections are usually few and far between. The lion’s share of work that an ICBC claims lawyer does is conducted prior to the discovery.
A good ICBC claims lawyer will ensure a client is well prepared, understands the process and understands how the answers given can be used to hurt the claim. ICBC cases are typically ‘record intensive’ and care must be taken in preparation to review these medical and other records to consider what use they may be put to at a discovery.
Do you have questions about an ICBC claim or an examination for discovery in a personal injury claim that you would like to discuss with an ICBC claims lawyer? If so, click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Written by admin on . Posted in ICBC Ankle Injury Cases, ICBC Dizziness Cases, ICBC Headache Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 62 Comments on Accident and Subsequent Fall Related, Plaintiff Awarded $72,231.88

Following a 3 day trial in Victoria, reasons for judgement were released today awarding an injured Plaintiff just over $70,000 in compensation as a result of 2 separate but allegedly related incidents.
The facts of this case are somewhat unique. The Plaintiff was injured in a BC car accident in August, 2005. Following an incident of ‘road rage’ the Defendant rear-ended the Plaintiff’s vehicle. Both the Defendant’s car and the Plaintiff’s van sustained significant damage in the impact. The Plaintiff sustained various injuries in this crash.
A few months later, the Plaintiff lost consiousness and fell and broke his leg while on a BC Ferry. The Plaintiff sued claiming the subsequent fall was related to the injuries sustained in the car accident.
Addressing injuries, Mr. Justice Metzger found that the Plaintiff suffered whiplash injuries as a result of the accident with associated severe headaches, neck and shoulder pain, limited right shoulder mobility, sleep disruption, nausea and some brief dizziness. He found that these symptoms “were improving at the time of his fall and loss of consciousness on the ferry, and but for the continuing headaches, were mostly resolved within 6 weeks of the motor vehicle accident“.
With respect to the fall the court found that the Plaintiff suffered a fractured right fibula and tibia. The court accepted that, as a result of this ankle injury, the Plaintiff was unable to enjoy skiing and curling anymore.
The court canvassed some important decisions in deciding whether the fall was in any way related to the car accident. The court reviwed 2 of the leading Supreme Court of Canada decisions often relied on by ICBC claims lawyers in advancing ICBC claims addressing the issue of ‘causation’, namely:
Athey v. Leonati
Resurfice Corp. v. Hanke
The court concluded that “the Plaintiff demonstrated that his MVA related symptoms contributed to his collapse on the ferry….I accept the Plaintiff’s testimony that he was overwhelmed with MVA related headache and neck pain immediately prior to the fainting incident…I find that the Plaintiff’s general fatigue and headach were significant factors in his loss of consciousness. There was a substantial connection between the injuries and the defendant’s conduct“.
The court went on the value the non-pecuniary loss (pain and suffering) for each of the events seperately.
For the Whiplash injuries the court awarded non-pecuniary damages of $12,000 and then reduced these by 15% to account for “(the Plaintiff’s) failure to pursue treatment, which most likely would have mitigated his damages and hastened his recovery”
For the broken leg (ankle injury) the court awarded $20,000 for non-pecuniary damages and then also reduced these by 15% for the Plaintiff’s failure to mitigate. The court concluded that the Plaintiff failed to follow sensible advice from his doctor (to attend physiotherapy after the ankle injury) and this is what resulted in the reduction of damages.
The Plaintiff also was awarded damages for past loss of income and special damages (out of pocket expenses incurred as a result of the injuries).
If you are advancing an ICBC claim involving a subsequent injury (intervening injury) this case is worth a read to view some of the factors courts consider in determining whether accident related injuries contributed to a future event that is compensible in law. This decision also shows the ‘failure to mitigate’ argument in action which resulted in the Plaintiff’s pain and suffering damages being reduced by 15% for failing to follow his doctors advice.
Do you have questions about this case or an ICBC claim involving an intervening injury that you wish to discuss with an ICBC Claims lawyer? If so click here to arrange a free consultation with ICBC Claims Lawyer Erik Magraken.

BC Supreme Court Awards $16,324 For Soft Tissue Injuries in an LVI Accident

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

In brief reasons for judgement released today The Honourable Mr. Justice Masuhara awarded a Plaintiff just over $16,000 in compensation for injuries sustained in a 2006 motor vehicle accident.
The collision occured in Surrey, BC in the evening of February 13, 2006. The Plaintiff’s vehicle, a 1996 Nissan, was stopped at a traffic light. The Defendant, driving a 1998 Astro, rear-ended the Plaintiff’s vehicle.
The Plaintiff stated that he injured his lower right back, right neck and right shoulder as a result of the BC car accident. The Plaintiff attended a total of 24 massage therapy sessions and had other treatments such as ultrasound, hot pads, electrical stimulations, massage therapy and stretching exercises.
The matter proceeded to trial and was heard in two days as a Rule 66 Fast Track trial.
This trial could be fairly characterized as a typical ICBC Low Velocity Impact (LVI) claim. That is, where the vehicle damage is slight ICBC Claims lawyers defending such actions typically make a point of bringing this fact to the courts attention hoping that the court will find that ‘no compensible’ injuries occurred.
The Plaintiff used good judgement, in my opinion, in admitting the fact that the vehicle damage cost little money to repair and did not challenge this fact.
In yet another example of our BC courts paying no mind to the ICBC LVI policy, Mr. Justice Masuhara stated that “I have taken into consideration the principle that the level of vehicle damage does not correlate to the level of injury a plaintiff has sustained.”
Medical evidence was led that the Plaintiff sustained injuries along his right paracervical and bilateral paralumbar muscles. These were described as a “strain/spasm”.
The court accepted the Plaintiff was injured in this collision. Specifically that “the collision was a low speed collision and that (the Plaintiff) suffered minor soft tissue injuries to his neck, shoulder and back.” The court found that these ‘minor soft tissue injuries’ resolved withing 14 months and any complaints after that time were ‘residual‘.
In the end $16,000 was awarded for non-pecuniary damages (pain and suffering) and out of pocket expenses for massage therapy and physiotherapy treatments were calculated as ‘special damages’.
Do you have questions about an LVI denial from ICBC or a claim involving soft tissue injuries? If so click here to arrange a free consultation with ICBC claims lawyer Erik Magraken.

BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

Written by admin on . Posted in ICBC Liability (fault) Cases, Jury Trials, Uncategorized. 66 Comments on BC Court of Appeal Orders New Trial in Left Hand Turn Accident Case

Today the BC Court of Appeal overturned a jury verdict finding a left hand turning motorist completely at fault for a motor vehicle collision and awarding the injured Plaintiff over $1.2 Million in compensation for serious injuries.
The car accident happend in 2000 in Coquitlam BC. The Plaintiff was travelling southbound in the right hand lane on North Road. There was stopped traffic in the two southbound lanes to his left. The Defendant was travelling North on North Road and attempted to make a left hand turn into the Lougheed Mall parking lot. At this time he collided with the Plaintiff’s vehicle.
The jury found the left-hand driver 100% at fault for this collision.
The jury went on to award damages as follows:
Non-pecuniary damages (pain and suffering) $300,000
Past Loss of Income: $275,000
Loss of Future Earning Capacity: $650,000
Cost of Future Care: $15,000
At trial the defence lawyer asked the judge to instruct the jury on the provisions of s. 158 of the Motor Vehicle Act. This section prohibits a driver from overtaking and passing a vehicle on the right when the movement cannot be made safely. The trial judge chose not to instruct the jury about this section.
The BC Court of Appeal held that it was an error in law not to do so, specifically that:

[11] In my opinion it was, in the circumstances of this case, a serious non- direction, amounting to a misdirection, to fail to draw the provisions of s. 158 to the attention of the jury. Section 158(2)(a) prohibits a driver from overtaking and passing another vehicle on the right when the movement cannot be made in safety. The jury could not have had a proper understanding of the parties’ relative obligations, and the standard of care each was to observe, without an instruction on the meaning and application of that section.

[12] I do not think this Court could properly decide how, if at all, fault should be apportioned. That question requires an appreciation of all the evidence, as well as a consideration of the credibility of the two drivers and the other witnesses.

[13] In my opinion, there must be a new trial on the issue of contributory negligence.

The Court ordered that the jury’s judgement be set aside and that the proceeding be generally returned to the BC Supreme Court for a new trial.
The result is, over 8 years after a very serious accident with serious injuries, If the Plaintiff is not able to come to a settlement of his ICBC Claim he will have to be involved in a second trial to address the allegations that he was partially at fault for his injuries and to prove the value of his losses all over again.
Section 158 of the BC Motor Vehicle Act is a rarely cited section but one of significant importance. Simply because you are in a through lane and are not governed by a stop sign or stop light does not mean you always have the right of way. If vehicles in your direction of travel have stopped and it is not clear why they have stopped it may not be safe to proceed. In this case it appears that vehicles may have stopped to permit the Defendant to turn left and the Plaintiff continued on. This case illustrates the potential use Section 158 of the Motor Vehicle Act may have for left hand turning motorists involved in a collision.
Do you have questions about this case or fault for an accident involving a left-turning vehicle that you wish to discuss with an ICBC Claims Lawyer? Click here to arrange a free consultation with ICBC Claims lawyer Erik Magraken.

Access to Justice – Where is the Nearest BC Supreme Court Registry?

Written by admin on . Posted in Uncategorized.

Do you need to know where the nearest BC Supreme Court or BC Provincial Court (small claims court) registry is to you? This informtion can be found on the BC Courts website. For the convenience of my readers I reproduce the full list of BC Supreme Court registries below.
If you are advancing an ICBC claim, are approaching your limitation period, and are not represented by an ICBC claims lawyer the first thing you will need to know is where the closest court registry is. Well, if you’re looking to file your claim in Supreme Court here you go:

ATLINFiling  P.O. Box 100
3rd Street
Atlin, B.C.
V0W lA0		 (250) 651-7595 (250)651-7707
CAMPBELL RIVER  500-13th Ave
Campbell River, B.C.
V9W 6P1		 (250) 286-7650 (250)286-7512
CHILLIWACK  46085 Yale Rd.
Chilliwack, B.C.
V2P 2L8		 (604) 795-8350 (604)795-8393 (Civil)Fax Filing: (604)795-8397(604)795-8345 (Criminal)
COURTENAY  Room 100
420 Cumberland Road
Courtenay, B.C.
V9N 2C4		 (250) 334-1115 (250)334-1191
CRANBROOK  Room 147
102 – 11th Avenue South
Cranbrook, B.C.
V1C 2P3		 (250) 426-1234 (250)426-1352Fax Filing: (250)426-1498
CRESTONClosed Contact Cranbrook      
DAWSON CREEK  1201 – 103rd Avenue
Dawson Creek, B.C.
V1G 4J2		 (250) 784-2278 (250)784-2339Fax Filing: (250)784-2218
DUNCAN  238 Government Street
Duncan, B.C.
V9L 1A5		 (250) 746-1227 (250)746-1244
FERNIE
(Sparwood)
Closed
Contact Cranbrook		      
FORT NELSON Bag 1000
4604 Sunset Drive
Fort Nelson, B.C.
V0C 1R0		 (250) 774-6990 (250)774-6904
FORT ST. JOHN  10600 – 100 Street
Fort St. John, B.C.
V1J 4L6		 (250) 787-3266 (250)787-3518
GOLDEN  837 Park Drive
P.O. Box 1500
Golden, B.C.
V0A 1H0		 (250) 344-7581 (250)344-7715
GRAND FORKSClosed
Contact Rossland		      
INVERMEREClosed
Contact Cranbrook		      
KAMLOOPS  223 – 455 Columbia Street
Kamloops, B.C.
V2C 6K4		 (250) 828-4344 (250)828-4332Fax Filing: (250)828-4345
KELOWNA  1355 Water Street
Kelowna, B.C.
V1Y 9R3		 (250) 470-6900 (250)470-6939Fax Filing: (250)979-6768
KITIMATClosed
Contact Terrace		      
LILLOOETClosed
Contact Kamloops		      
MERRITTClosed
Contact Kamloops		      
NANAIMO  35 Front Street
Nanaimo, B.C.
V9R 5J1		 (250) 741-3805 (250)741-3809
NELSON  320 Ward Street
Nelson, B.C.
V1L 1S6		 (250) 354-6165 (250)354-6539Fax Filing: (250)354-6133
NEW WESTMINSTER  Begbie Square
651 Carnarvon Street
New Westminster, B.C.
V3M 1C9		 Chambers:
(604) 660-0686Civil:
(604) 660-0571Criminal:
(604) 660-8517Divorce:
(604) 775-0671Finance:
(604) 660-8532Probate:
(604) 660-0579Trial Scheduling:
Supreme: (604) 660-8551		 (604)660-8977 (Criminal)(604)660-1937 (Civil)
100 MILE HOUSEClosed
Contact Williams Lake		      
OLIVERClosed
Contact Penticton		      
PENTICTON  Room 116
100 Main Street
Penticton, B.C.
V2A 5A5		 (250) 492-1231 (250)492-1378Fax Filing: (250) 492-1290
PORT ALBERNI  2999 – 4th Avenue
Port Alberni, B.C.
V9Y 8A5		 (250) 720-2424 (250)720-2426
PORT HARDY 9300 Trustee Road
Mailbag 11000
Port Hardy, B.C.
V0N 2P0		 (250) 949-6122 (250)949-9283
POWELL RIVER  103 – 6953 Alberni Street
Powell River, B.C.
V8A 2B8		 (604) 485-3630 (604)485-3637
PRINCE GEORGE   J.O. Wilson Square
250 George Street
Prince George, B.C.
V2L 5S2		 (250) 614-2700 (250)614-2737
(250)614-2717Fax Filing: (250)614-7923
PRINCE RUPERT  100 Market Place
Prince Rupert, B.C.
V8J 1B8		 (250) 624-7525 (250)624-7538
PRINCETONClosed
Contact Penticton		      
QUESNEL  305 – 350 Barlow Avenue
Quesnel, B.C.
V2J 2C1		 (250) 992-4256 (250)992-4171
REVELSTOKEClosed
Contact Salmon Arm		      
ROSSLAND P.O. Box 639
2288 Columbia Avenue
Rossland, B.C.
V0G 1Y0		 (250) 362-7368 (250)362-9632Fax Filing: (250)362-7321
SALMON ARM  BOX 100, Rm. 203
20 Hudson Avenue N.E.
Salmon Arm, B.C.
V1E 4S4		 (250) 832-1610 (250)832-1749Fax Filing: (250)833-7401
SMITHERS  No. 40, Bag 5000
3793 Alfred Avenue
Smithers, B.C.
V0J 2N0		 (250) 847-7376 (250)847-7710Fax FIling:
(250)847-7344
TERRACE  3408 Kalum Street
Terrace, B.C.
V8G 2N6		 (250) 638-2111 (250)638-2123Fax Filing: (250)638-2143
VANCOUVER   800 Smithe Street
Vancouver, B.C.
V6Z 2E1		 Administration:
(604) 660-2847Accounting:
(604) 660-2866Chambers:
(604) 660-2849Criminal:
(604) 660-2874Civil:
(604) 660-2845Divorce:
(604) 660-2486Probate:
(604) 660-2876
(604) 660-2877Registrar’s Booking Desk
(604) 660-2853Trial Scheduling:
(604) 660-2853 (Civil)
(604) 660-2854 (Civil)
(604) 660-9201 (Criminal)		 Administration:
(604)660-2420Civil:
(604)660-2429Criminal:
(604)660-2418Registrar’s Booking Desk
(604)660-0623Trial Scheduling: (604)660-0623
VANDERHOOFClosed
Contact Prince George		      
VERNON  3001 – 27th Street
Vernon, B.C.
V1T 4W5		 (250) 549-5422 (250)549-5621Fax Filing: (250)549-5461
VICTORIA  Location:
850 Burdett Avenue
Victoria, B.C. Mailing Address:
PO Box 9248
Stn Prov Govt
Victoria, BC
V8W 9J2		 (250) 356-6634 (250)356-6279 (Criminal)
(250) 356-6862 (Civil)
WILLIAMS LAKE  540 Borland Street
Williams Lake, B.C.
V2G lR8		 (250) 398-4301 (250)398-4459Fax Filing: (250)398-4264

 
Are you looking for an ICBC Claims lawyer that services your community? If so contact ICBC Claims lawyer Erik Magraken to arrange for a free consultation.

Supreme Court of Canada Clarifies Law Relating to "Forseeability"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 142 Comments on Supreme Court of Canada Clarifies Law Relating to "Forseeability"

In reasons for judgement released today, the Supreme Court of Canada dismissed the appeal of a very peculiar case. In doing so they clarified the law regarding ‘forseeability of injury’ which is a necessary ingredient to prove in negligence cases.
While this case does not involve an ICBC claim, this case is important because ‘forseeability’ must be proven in all negligence cases, and this includes ICBC car accident tort claims.
The facts of this case are unusual. The Plaintiff allegedly sustained a psychiactric injury as a result of seeing dead flies in a bottle of water supplied by Culligan. He had used Culligan’s services for many years. As a result of this “he became obsessed with the event and its revolting implications for the health of his family”. He went on to develop a major depressive disorder with associated phobia and anxiety.
At trial he was awarded over $300,000 in compensation. The Ontario Court of Appeal overturned the verdict and thus this case was brought to the Supreme Court of Canada.
When suing for negligence (and this is the case in most ICBC car accident claims) a Plaintiff must prove 4 things:
1. That the defendant owed the Plaintiff a duty of care
2. That the defedant’s behaviour breached the standard of care
3. That the Plaintiff sustained damages
4. That the damages were caused, in fact and in law, by the Defenant’s breach.
The Supreme Court of Canada held that the Plaintiff met the first three tests to succeed in his action. It is the 4th test that the Plaintiff failed on and in explaining why the Supreme Court of Canada added some clarity to this area of law. The important portion of the judgement can be found at paragraphs 11- 18 which read as follow:

[11] The fourth and final question to address in a negligence claim is whether the defendant’s breach caused the plaintiff’s harm in fact and in law. The evidence before the trial judge establishes that the defendant’s breach of its duty of care in fact caused Mr. Mustapha’s psychiatric injury. We are not asked to revisit this conclusion. The remaining question is whether that breach also caused the plaintiff’s damages in law or whether they are too remote to warrant recovery.

[12] The remoteness inquiry asks whether “the harm [is] too unrelated to the wrongful conduct to hold the defendant fairly liable” (Linden and Feldthusen, at p. 360). Since The Wagon Mound (No. 1), the principle has been that “it is the foresight of the reasonable man which alone can determine responsibility” (Overseas Tankship (U.K.) Ltd. v. Morts Dock & Engineering Co., [1961] A.C. 388 (P.C.), at p. 424).

[13] Much has been written on how probable or likely a harm needs to be in order to be considered reasonably foreseeable. The parties raise the question of whether a reasonably foreseeable harm is one whose occurrence is probable or merely possible. In my view, these terms are misleading. Any harm which has actually occurred is “possible”; it is therefore clear that possibility alone does not provide a meaningful standard for the application of reasonable foreseeability. The degree of probability that would satisfy the reasonable foreseeability requirement was described in The Wagon Mound (No. 2) as a “real risk”, i.e. “one which would occur to the mind of a reasonable man in the position of the defendant … and which he would not brush aside as far-fetched” (Overseas Tankship (U.K.) Ltd. v. Miller Steamship Co. Pty., [1967] A.C. 617, at p. 643).

[14] The remoteness inquiry depends not only upon the degree of probability required to meet the reasonable foreseeability requirement, but also upon whether or not the plaintiff is considered objectively or subjectively. One of the questions that arose in this case was whether, in judging whether the personal injury was foreseeable, one looks at a person of “ordinary fortitude” or at a particular plaintiff with his or her particular vulnerabilities. This question may be acute in claims for mental injury, since there is a wide variation in how particular people respond to particular stressors. The law has consistently held — albeit within the duty of care analysis — that the question is what a person of ordinary fortitude would suffer: see White v. Chief Constable of South Yorkshire Police, [1998] 3 W.L.R. 1509 (H.L.); Devji v. Burnaby (District) (1999), 180 D.L.R. (4th) 205, 1999 BCCA 599; Vanek. As stated in White, at p. 1512: “The law expects reasonable fortitude and robustness of its citizens and will not impose liability for the exceptional frailty of certain individuals.”

[15] As the Court of Appeal found, at para. 49, the requirement that a mental injury would occur in a person of ordinary fortitude, set out in Vanek, at paras. 59-61, is inherent in the notion of foreseeability. This is true whether one considers foreseeability at the remoteness or at the duty of care stage. As stated in Tame v. New South Wales (2002), 211 C.L.R. 317, [2002] HCA 35, per Gleeson C.J., this “is a way of expressing the idea that there are some people with such a degree of susceptibility to psychiatric injury that it is ordinarily unreasonable to require strangers to have in contemplation the possibility of harm to them, or to expect strangers to take care to avoid such harm” (para. 16). To put it another way, unusual or extreme reactions to events caused by negligence are imaginable but not reasonably foreseeable.

[16] To say this is not to marginalize or penalize those particularly vulnerable to mental injury. It is merely to confirm that the law of tort imposes an obligation to compensate for any harm done on the basis of reasonable foresight, not as insurance. The law of negligence seeks to impose a result that is fair to both plaintiffs and defendants, and that is socially useful. In this quest, it draws the line for compensability of damages, not at perfection, but at reasonable foreseeability. Once a plaintiff establishes the foreseeability that a mental injury would occur in a person of ordinary fortitude, by contrast, the defendant must take the plaintiff as it finds him for purposes of damages. As stated in White, at p. 1512, focusing on the person of ordinary fortitude for the purposes of determining foreseeability “is not to be confused with the ‘eggshell skull’ situation, where as a result of a breach of duty the damage inflicted proves to be more serious than expected”. Rather, it is a threshold test for establishing compensability of damages at law.

[17] I add this. In those cases where it is proved that the defendant had actual knowledge of the plaintiff’s particular sensibilities, the ordinary fortitude requirement need not be applied strictly. If the evidence demonstrates that the defendant knew that the plaintiff was of less than ordinary fortitude, the plaintiff’s injury may have been reasonably foreseeable to the defendant. In this case, however, there was no evidence to support a finding that Culligan knew of Mr. Mustapha’s particular sensibilities.

[18] It follows that in order to show that the damage suffered is not too remote to be viewed as legally caused by Culligan’s negligence, Mr. Mustapha must show that it was foreseeable that a person of ordinary fortitude would suffer serious injury from seeing the flies in the bottle of water he was about to install. This he failed to do. The only evidence was about his own reactions, which were described by the medical experts as “highly unusual” and “very individual” (C.A. judgment, at para. 52). There is no evidence that a person of ordinary fortitude would have suffered injury from seeing the flies in the bottle; indeed the expert witnesses were not asked this question. Instead of asking whether it was foreseeable that the defendant’s conduct would have injured a person of ordinary fortitude, the trial judge applied a subjective standard, taking into account Mr. Mustapha’s “previous history” and “particular circumstances” (para. 227), including a number of “cultural factors” such as his unusual concern over cleanliness, and the health and well-being of his family. This was an error. Mr. Mustapha having failed to establish that it was reasonably foreseeable that a person of ordinary fortitude would have suffered personal injury, it follows that his claim must fail.

If you are advancing and ICBC tort claim (a claim for damages against an at fault motorist insured by ICBC) you will have to keep the ‘forseeabilty’ test in mind and know the law as set out in this judgement.
The court also made an interesting comment about how the law views physical as compared to psychological injuries. At Paragraph 8 of the judgement, the court adopted the reasons from a 1996 case from the House of Lords which stated that “In an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may already seem somewhat artificial, and may soon be altogether outmoded. Nothing will be gained by treating them as different “kinds” of personal injury, so as to require the application of different tests in law.”
It is good to know that the Supreme Court of Canada does not separate physical injuries from phychological injuries and treats both as real and compensable.
Do you have questions about this judgement or an ICBC injury claim that you wish to discuss with an ICBC claims lawyer? If so click here to contact ICBC Claims lawyer Erik Magraken for a free consultation.