Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
In this case the Plaintiff was injured in 2 separate car accidents. She was not at fault for either. The injuries in both were found to be ‘indivisible’ meaning that the injuries were ’caused or materially contributed to’ by both events.
The Plaintiff claimed damages for both crashes. She settled one claim for $315,000. She succeeded in her lawsuit against the other driver and had her injuries valued at about $400,000. The trial judge then went on to order that the settlement proceeds from the second accident ($315,000) must be subtracted from the $400,000 awarded at trial. This was so because the injury was ‘indivisible’.
Today the BC Court of Appeal upheld this approach. In particular the court made (or confirmed) several important findings:
If two torts were necessary causes of the injuries, liability for the loss resulting from those injuries may be apportioned based on fault, but each tortfeasor is responsible for the entire damage to which their tort materially contributed beyond the de minimus range ( I would imagine this does not hold true, however, in cases of contributory negligence)
Although the concern in the case at bar is whether to deduct settlement proceeds from global damage awards rather than whether to make an exception to settlement privilege, the principle is the same: the concern to prevent double recovery outweighs the public interest in encouraging settlements.
A “divisible injury” is one that has ‘no causal connection’ to a certain tort
An ‘indivisble injury’ is one that was ’caused or materially contributed to by a tort’
“concurrent torts” occur when their negligence combine to cause one injury and its consequential loss at the same time
“consecutive torts” occur when injury occurs from 2 torts which occurred at different times.
There is no valid policy reason to treat concurrent and consecutive torts differently when both are necessary causes of an indivisible injury and the losses consequential to it.
When dealing with ‘consecutive torts’ causing an ‘ indivisible injury’ the two causes of action are not separate: they are linked by the indivisible injury. That link brings into play not only joint and several liability but also the rule against double recovery.
The bottom line is that if you sue for an ‘indivisible injury’ and have already been partially or wholly compensated by one ‘tortfeasor’ for that injury, a subsequent tortfeasor can subtract the compensation amount from what he/she has to pay.
Tag: ICBC claims
Reasons for judgement were released today from the BC Court of Appeal which are of great significance for anyone advancing an ICBC injury claim which involves more than one event which contributed to the injury.
When you sue another motorist in BC Supreme Court for car accident related injuries, they are entitled to ‘level the playing field’ by having you assessed by a so-called ‘independent medical examiner’.
This right is given to Defendants by Rule 30 of the BC Supreme Court Rules. Rule 30 reads as follows:
Rule 30 — Physical Examination and Inspection
(1) Where the physical or mental condition of a person is in issue in a proceeding, the court may order that the person submit to examination by a medical practitioner or other qualified person, and if the court makes an order, it may make
(a) an order respecting any expenses connected with the examination, and
(b) an order that the result of the examination be put in writing and that copies be made available to interested parties.
(3) A person who is making an examination under this rule may ask any relevant question concerning the medical condition or history of the person being examined.
(4) Where the court considers it necessary or expedient for the purpose of obtaining full information or evidence, it may order the production, inspection and preservation of any property and authorize samples to be taken or observations to be made or experiments to be conducted on or with the property.
(5) For the purpose of enabling an order under this rule to be carried out, the court may authorize a person to enter upon any land or building.
(6) Rule 27 (26) applies to examinations and inspections ordered under this rule.
On behalf of Defendants, ICBC has a handful of doctors that they use regularly to conduct these ‘rule 30’ medical exams.
What if ICBC has already sent you to a doctor? Can they send you to a second? The answer is it depends on the circumstances. As you can see above, Rule 30(2) permits a court to order a second examination. Our courts have held that, depending on the circumstances, ICBC can send a Plaintiff to a second examination with a doctor with different qualifications than the first. There are numerous cases interpreting this rule and the specific cases either allowing, or disallowing, multiple medical examinations are too numerous to count. Reasons for judgement were released today permitting a Defendant to have Plaintiff injured in a 2004 BC Car accident assessed by a neurologist when that Plaintiff had already been assessed by an orthopaedic surgeon on behalf of the Defendants.
Some of the factors courts consider when deciding whether they should order a ‘further’ examination under Rule 30(2) were laid out in the recent BC Supreme Court case of Walch v. Zamco. In Walch, the court summarized the factors that ought to be considered as follows:
The court’s discretion must be exercised judicially on the basis of the evidence;
A second examination may be appropriate where there is some question which could not have been dealt with on the first examination;
A second examination will not be allowed simply because the magnitude of the loss is greater than that previously known;
A passage of time alone is not a sufficient reason to order a second examination;
Where a diagnosis is difficult and existing assessments are aged, the court may consider a second examination;
Differences of opinions between medical professions is not sufficient reason to order a second examination where the first examiner could have discovered the issue on the first examination.
In order to obtain an order for a subsequent medical examination, the defendants must satisfy the courts that there is some question or matter of which could have been dealt with at the first examination: Jackson, supra.
When considering whether to grant a subsequent medical examination the court should take into account the timing of the application in light of the requirements of Rule 40A and practical issues relating to trial preparation: McKay, supra. The authorities do not require that the application be supported by medical evidence indicating that a subsequent medical examination is required: McKay, supra.
When deciding whether to consent to a second ICBC medical examination it is good to consider the above factors. Last, but not least, it is important to know that such an examination is ‘discretionary’ and certain judges/masters of the BC Supreme Court may grant an application in circumstances where others may deny.
Rule 68 of the BC Supreme Court Rules was introduced to deal with certain cases worth $25,000 – $100,000. For such cases this rule was implemented to help bring cases to trial more quickly and with less expense. In doing so certain limits were imposed on how a claim can be prosecuted. One of the most significant restrictions (as it relates to ICBC injury claims) is the restriction of Rule 68(33) which generally limits a party to only one expert witness. Specifically this subrule states that:
(33) Unless the court orders otherwise, a party to an expedited action is entitled, under Rule 40A, to tender the written statement of, or to call to give oral opinion evidence, not more than
(a) one expert of the party’s choosing, and
(b) if the expert referred to in paragraph (a) does not have the expertise necessary to respond to the other party’s expert, one expert to provide the required response.
As many ICBC injury claims lawyers know, it is often difficult to prepare a case for trial with only one expert witness. Often an injured Plaintiff has several treating physicians and it is important to hear from all of them. Similarly it is often a good idea to retain a highly qualified specialist to conduct an ‘independent medical exam’ to summarize all of the Plaintiffs injuries and provide a comprehensive opinion addressing injuries, causation prognosis and need for future treatment. All of this costs money. When a case is prosecuted under Rule 68, then, does the above subsection prevent a successful plaintiff from claiming the costs of hiring more than one expert? Reasons for judgement were released today which say no.
In this case the Plaintiff suffered various injuries in a car accident. The claim was prosecuted under Rule 68 and eventually settled for $25,000. In prosecuting the case the Plaintiff lawyer obtained reports from 5 experts. ICBC argued that Rule 68
“restricts the plaintiff to claiming disbursements relating to one expert only, unless (the Plaintiff) has obtained a court order allowing more than one expert…. as the plaintiff did not seek leave from the court to introduce more than one expert report, the plaintiff ought to be limited to claiming for only one expert’s report as part of the disbursements in this action…..based on the principles of proportionality and the express limit on the number of reports permissible in such an action, it was not reasonable or proper to engage this number of experts.“
The court rejected this argument and held that in this case it was reasonable to have the Plaintiff assessed by more than one expert. Specifically the court stated that:
in the circumstances of this particular action (where the plaintiff was clearly fragile) it was reasonable and necessary to engage a number of experts to assess the plaintiff. If that is the case, then does the application of Rule 68 still prevent the plaintiff from claiming disbursements for each of those experts? I think not. Rule 68 does not say that a party is restricted, on an assessment of costs, from claiming for the costs of more than one expert. It simply says that, without leave of the court, a party may not elicit testimony from more than one expert witness. (the Plaintiff’s lawyer) was, in my view, obliged as counsel to try and determine the extent of the plaintiff’s injuries and to understand the cause(s) of them. She would not have been able to do that without resort to the opinions of the various experts engaged.
Reasons for judgement were released today dismissing a defence applicaiton seeking ‘particulars of the Plaintiff’s wage loss and loss of capacity claims“.
The Plaintiff was invovled in a motor vehicle accident. A Statement of Claim was filed in BC Supreme Court suing for, amongst other things ‘loss of earnings, past and prospective, loss of income earning capacity, loss of opportunity to earn income”
A statement of Defence was filed. The Defendant then examined the Plaintiff for discovery and requested that the Plaintiff provdie ‘particulars of the wage-loss claim being advanced and loss of capacity claim”. The Plaintiff lawyer did not appear to agree to this request.
In dismissing the motion Master Baker noted that this was not truly a a request for particulars, rather this was a motion seeking evidence. The Court held that this motion should have been brought further to Rule 27 of the BC Rules of Court (the rule dealing with examinaitons for discovery) rather then pursuant to Rule 19 (the rule dealing with pleadings).
Master Baker made some interesting comments implying that such a motion may not be succesful even if brought pursuant to Rule 27 because such requests for evidence may be objectionable as being ‘too vague or speculative‘.
Reasons for judgement were released today awarding a Plaintiff just over $100,000 in compensation for injuries sustained in a 2005 Vernon car accident including $50,000 for non-pecuniary damages (pain and suffering).
The accident occurred when the Defendant pulled out of an alleyway and struck the Plaintiff’s vehicle. The crash was significant causing the Plaintiff’s 1999 Honda Civic extensive damage.
Mr. Justice Barrow summarized the Plaintiff’s injuries as follows:
I am satisfied that the plaintiff sustained a moderate soft tissue injury to her back in the motor vehicle accident. Both Dr. Coghlan and Dr. Smart diagnosed her injury as such. Further, she sustained a fracture to her sternum. That fracture likely disrupted the soft tissues in the area of her sternum as her body compensated for the boney injury. Those injuries resulted in her being entirely unable to perform the physical labours associated with the operation of the family farm for approximately six months and continued to substantially impair that ability until the farm was sold in the summer of 2006. I am satisfied that they continue to limit her function today in the sense that she is unable to lift her grandchildren and she experiences difficulty in doing other activities that she formerly enjoyed, including keeping her house, tending to her garden and sleeping. As to the future, these limitations will likely continue although they will be moderate. I am also satisfied that she would benefit from a program of physical strengthening. While I understand her reluctance to attend a gym, that would be of benefit to her. It is not the defendant’s responsibility if she chooses not to follow her physician’s advice in that regard.
In finding that $50,000 was fair for Pain and Suffering Justice Barrow noted that “(the Plaintiff) was unable to return to farming, an occupation which was a source of enjoyment and fulfillment to her. She has suffered a loss of independence in that she is unable to keep her house to the standard that she formerly had and is forced to rely on her children to do that for her”
ICBC claims can be very expensive to bring to trial. Typically, most of the expenses are associated with the cost of presenting medical opinion evidence. Medical opinion evidence is often required to prove that injuries are caused by an accident, to discuss reasonable treatments (addressing special damages), and to address the specific diagnosis and prognosis of car accident related injuries. Such opinions can cost thousands of dollars to obtain and thousands more to present in court.
What if you have a case that is very risky? What if the trial outcome of ‘who is at fault’ is uncertain and should you lose on that issue you don’t want to be stuck with thousands of dollars of expenses for expert witness fees? Can you do anything about it? As with many areas of the law, the answer is sometimes.
Rule 39(29) of the BC Supreme Court Rules deals with splitting the issues at trial. In an ICBC claim, it is possible to use this rule to ask a court to let the liability (fault) part of a trial run first prior to the quantum part (the part that deals with the value of the ICBC claim).
Specifically, Rule 39(29) states that:
The court may order that one or more questions of fact or law arising in an action be tried and determined before the others, and upon the determination a party may move for judgment, and the court, if satisfied that the determination is conclusive of all or some of the issues between the parties, may grant judgment.
If the court allows an order splitting liability and quantum, and if you lose your ICBC claim at trial on the issue of liability, that could potentially save you tens of thousands of dollars by having the case dismissed prior to presenting all of your medical evidence.
Reasons for judgement were released today where the Honourable Madam Justice Allan refused to sever the issues of quantum and fault.
In paragraphs 11-15 her Ladyship summarizes some of the principles court’s consider when reviewing such an application. I set out these paragraphs below:
 There is ample authority for the proposition that an applicant must establish that there exist extraordinary, exceptional or compelling reasons for severance, and not merely that it would be just and convenient to order severance: MacEachern v. Rennie, 2008 BCSC 1064; Hynes v. Westfair Foods Ltd., 2008 BCSC 637; and Westwick v. Culbert,  B.C.J. No. 2121.
 It is true that some recent cases have held that a judge’s discretion to sever an issue or issues is not restricted to “extraordinary or exceptional circumstances”: Nguyen v. Bains, 2001 BCSC 1130; Enterprising Minds Technology Inc. v. Lululemon Athletica Inc., 2006 BCSC 1168. However, there must be some compelling reasons to order severance, such as a real likelihood of a significant savings in time and expense.
 Mr. McGivern relies heavily on Vaughn v. Starko,  Y.J. No. 50, a decision of the Yukon Supreme Court. In that case, the plaintiff sought a determination of liability pursuant to Rule 18A with damages to be assessed at a later date. Gower J. rejected the defendant’s argument that there must be extraordinary, exceptional or compelling reasons for a severance of liability and damages. He drew a distinction between applications under Rule 39(29) and Rule 18A. He concluded at para. 48 it would not be unjust to decide the issue of liability on a summary basis and that it would be appropriate to sever liability from the issue of damages. Because the application was made under Rule 18A, he found that it was not necessary to apply the heavier onus for severance that Rule 39(29) imposed.
 With respect, I do not agree with the analysis in that case. Rule 18A is a method of trying a case summarily. The issues in determining whether Rule 18A is suitable are (1) whether it is possible to find the facts necessary to decide the issues of fact or law; and (2) whether it would be unjust to decide those issues summarily. On the other hand, Rule 39(29) provides the Court with the discretion to try one question of fact or law before another and give judgment. A determination of an application for severance must be informed by the case law that relates to the issue of severance, not to the issue of disposing of an action summarily.
 In an earlier case, Legrand v. Canning and Canning, 2000 BCSC 1633, Scarth J. dealt with a severance application brought under Rule 18A. He concluded that the plaintiff had not established extraordinary, exceptional or compelling reasons for severance. In that case, the liability issues were not plain in the circumstances and there was a further issue of whether the plaintiff was contributorily negligent. Evidence relating to the severity of the impact in question was relevant to the issues of liability and quantum.
Rule 39(29) is worth reviewing for anyone advancing an ICBC claim where the issue of fault is uncertain to see if time and expense can be saved by severing the issues of fault and quantum.
Today I’m blogging from the sunny City of Vernon, having completed an examination for discovery a little earlier than expected with some time on my hands prior to returning to Victoria.
In the first precedent that I am aware of concening Rule 37B (The new BC Supreme Court Rule dealing with formal settlement offers) reasons for judgement were released today refusing to award a successful defendant double costs after trial.
While this is not and ICBC claim, nor even a personal injury claim for that matter, the factors that the court considered in refusing to order double costs may be relevant in an ICBC claim.
The facts of the case briefly are as follows: The Defendant was sued by the SPCA for the costs of care the SPCA incurred for some neglected animals. The Defendant denied liability and made a formal offer to settle the claim for $1. The Defendant succeeded at trial. In such a scenario, under the old Rule 37, the Defendant would likely be entitled to ‘double costs’. Here, the Defendant asked the court to excercises its discretion under the new Rule 37B to award double costs.
The court refused to do so setting out the following reasons:
 Rule 37B(1) reads in part:
(1) in this rule “offer to settle” means
an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule …
 In the circumstances, Rule 37B applies to the offer made by Mr. Baker.
 Rule 37B (5) and (6) read:
(5) In a proceeding in which an offer to settle has been made, the court may do one or both of the following:
(a) deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;
(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.
(6) In making an order under subrule (5), the court may consider the following:
(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;
(b) the relationship between the terms of settlement offered and the final judgment of the court;
(c) the relative financial circumstances of the parties;
(d) any other factor the court considers appropriate.
 Subrule (5) is permissive. It empowers the court to make either type of order mentioned in the subrule. By necessary implication, it contemplates that the court may make an order that denies one of the two forms of relief set out in the subrule……….
The court then went on to canvass some prinicples of Bankruptcy law and concluded that the Defendant’s offer “was not one that reasonably ought to have been accepted (pursuant to Rule 37B(6)(a) on the date of the offer to settle or before the Rule 18A hearing at which time, pursuant to Rule 37(13), the offer was no longer capable of acceptance.“
The court then went on to deal with Rule 37B(6)(b) and held as follows:
Rule 37B (6) (b)
Rule 37B (6) (b)
 This subrule indicates that the court, when exercising its discretion under Rule 37B should consider the relationship between the offer and the result in the action. In this case, the offer to settle was for one dollar. There was no counterclaim. BCSPCA’s only risk was costs. An offer that would confer a significant benefit, aside from costs, on a party who failed to accept the offer would be more likely to attract double costs under Rule 37B that an offer of the type made by Mr. Baker.
Rule 37B (6) c)
 The means of the parties may be taken into consideration when exercising discretion under Rule 37B. The BCSPCA is a non-profit society dedicated to prevention of cruelty to animals. It is a substantial society. It had an operating surplus of $379,022 in 2007. Mr. Baker has not disclosed his financial circumstances. His counsel stated in submissions that he is of “modest means”.
 In all the circumstances, Mr. Baker has not established that the offer he made was an offer that ought reasonably to have been accepted by BCSPCA under the law applicable during its currency. Acceptance would not have conferred a significant benefit on BCSPCA other that its effect on costs. Although BCSPCA is likely the party most able to bear the costs of the litigation, Mr. Baker has not shown that an award of double costs is, considering the other factors bearing on an award of costs under Rule 37B, necessary to avoid the imposition of hardship in the litigation.
It remains to be seen what the number of soon to be coming precedents will ultimatly hold for the interpretation of this rule, but this case illustrates that courts may not take to kindly to ‘nuisance value’ settlement offers of $1.
(Note: the case discussed in the below article was upheld by the BC Court of Appeal on March 19, 2010)
What if you are injured in British Columbia in a Hit and Run motor vehicle accident where you could not ascertain the name of the driver / owner of the vehicle that injured you? Can you claim compensation? Often times yes!
Section 24 of the Insurance (Vehicle) Act permits victims of BC Hit and Run accidents to sue ICBC directly for such accidents in certain circumstances.
Section 24 has some restrictions and limitations in it and its imporatant to read this section and BC court cases interpretting it carefully to determine if the victim of a hit and run can seek money from ICBC.
What if the person who committed the hit and run was also committing another crime at the time such as fleeing from the scene of a robbery? Can comepensation be sought in such circumstances? Reasons for judgement were released today that seem to say yes.
In this case the Plaintiff was returning her shopping cart at the Real Canadian Supestore when a blue van drove by her and the passenger reached out and snatched her purse from her shoulder. During this crime the Plaintiff ‘went flying backwards down the parking lot (and) hit her head on the pavement”. She was injured and sued ICBC pursuant to section 24.
ICBC brought an applicaiton to dismiss the lawsuit claiming that s. 24 does not apply in circumstances where the unknown motorist is commiting a crime in the course of the hit and run. The ICBC lawyer argued that “section 24…confines its amvit to motor vehicle accidents and that the present case involves, not an accident arising from negligence, but rather an intentional act amounting to a civil assault and battery and conversion, or in terms of the criminal law, an assault and theft or a robbery“.
In other words, the ICBC lawyer argued that the Plaintiff was not injured through the negligenct use of a motor vehicle rather because of an intentional criminal act.
The Honourable Mr. Justice Cullen dismissed the ICBC applicaiton and permitted the Plaintiff to carry on her lawsuit against ICBC as nominal defendant. Mr. Justice Cullen concluded that there is nothing in section 24 that prevents a person from suing ICBC when the unidentified motorist was committing an intentional tort when injuring the Plaintiff.
For your convenience I reproduce the most compelling findings below:
 In the case at bar, it is clear that at all material times, the tortfeasor’s motor vehicle was being used as a motor vehicle. That it was being used to facilitate the commission of a criminal offense no more negates its use as a motor vehicle than if it were being driven to or from the scene of a bank robbery, or as a vehicle to transport a kidnap victim. In my view, a finding in the present case that the motor vehicle was being used as a motor vehicle, notwithstanding that it was used in the commission of the offense of robbery or the civil tort of assault, is consistent with the reasoning of Binnie J. in the Citadel case. It is clear from Binnie J.’s reasoning that the fact a motor vehicle is used to facilitate or effect a criminal purpose does not render its use as anything other than as a motor vehicle.
 The question that arises in the case at bar is whether the use of the motor vehicle was fortuitous or incidental to the act that caused the injury or whether it was integral to it.
 In my view, in the case at bar, unlike the cases of Citadel, Chan, Collier or Lumbermens, the act causing the alleged injury to the plaintiff was directly caused, and not isolated from, or severed from the use of a vehicle as a vehicle. Here, the uncontradicted evidence is that, as the passenger in the vehicle grabbed the plaintiff’s purse, which she was carrying on her shoulder, the driver accelerated the vehicle, and it was that acceleration in combination with the passenger’s grip on the plaintiff’s purse that caused her to fall to the ground and be dragged by the vehicle as it accelerated away. For the present case to be analogous to the circumstances in Chan, in which Binnie J. found a severance between the tortfeasor’s use or operation of his motor vehicle and the act causing the injury, the tortfeasor’s motor vehicle in the present case would have had to be stationary and not implicated in the action by which the plaintiff was thrown to the ground and injured. In my view, there is a clear causal link between the use of a motor vehicle as a motor vehicle in the present case, and the injuries alleged by the plaintiff.
 In my view, this case is distinguishable from the facts in Co-operative Fire, supra, relied on by the applicant. In that case the court was confronted with the need to construe the effects of an exclusion clause in a policy of insurance excluding coverage for a “bodily injury or damage caused intentionally by or at the direction of an insured”, and as well s. 2 of the Insurance Act, 1968 of New Brunswick, upon the circumstances at issue. Section 2 of the Insurance Act reads as follows:
… a violation of any criminal or other law in force in the Province or elsewhere shall not, ipso facto, render unenforceable a claim for indemnity … except where the violation is committed by the insured, or by another person with the consent of the insured, with intent to bring about loss or damage ….
 Thus the court in Co-operative Fire was dealing with whether an act by the insured was governed by a term in the contract of insurance excluding liability for intentional acts. The court found that although the consequences were unintended in that case, the unlawful act causing them was not, and hence it (the act) fell within the scope of the exclusion clause.
 In the present case, there is no exclusion clause. It is true, as the applicant submits, that in s. 24 the occurrence giving rise to the bodily injury or death that is the subject of a claim is referred to as an accident in various subsections. However, in those cases that the applicant relies on as support for the proposition that the word “accident” is to be given “its ordinary and popular meaning” and means “any unlooked for mishap or occurrence”, the operative wording is somewhat different from that in the case at bar. In Canadian Indemnity, supra, the relevant term being applied was as follows:
The Coverage given by this policy applies only to accidents or occurrences arising out of and incidental to the business operations of the Insured and originating during the policy period.
[see Straits Towing Ltd. v. Washington Iron Works¸  74 W.W.R. 228, 1970 CarswellBC 157 (er) (B.C.S.C.) at 230].
 In Mutual of Omaha, supra, the applicable term under consideration was:
“Injuries” means accidental bodily injuries received while the Insured is insured under the policy which result in covered loss independently of sickness and all other causes, provided such injuries are sustained….
 Thus, in both cases, unlike in the present case, the policies of insurance contained a clause that expressly limited coverage to damage or injuries caused by accidents.
 As Finch J.A. noted in Chan, supra, however, s. 24 does not refer to bodily injury or death arising from the negligent or accidental use or operation of a motor vehicle. It requires “only that the plaintiff establish ‘a cause of action’ against the driver (or owner) and that the injury arises out of the use or operation of the motor vehicle”. It was Finch J.A.’s conclusion in Chan that the injury arose out of the use or operation of the motor vehicle (that is, his conclusion with respect to causation) that attracted disagreement from the Supreme Court of Canada in Citadel, not his conclusion that intentional acts fall within the scope of s. 24.
 Indeed, in Citadel, Binnie J., in giving examples of what would attract coverage under s. 24, did reference actions (in exploring the purpose test) that, under the reasoning in Saindon, would attract the characterization of intentional. In particular, he gave an example of a motorist intentionally trying to jump his vehicle over the interstate highway at high speed, “Evel Knievel style”, and crashing down on the plaintiff’s vehicle. There, he held, “…there is no doubt that [the tortfeasor] would have been driving the vehicle and driving meets the Amos purpose test.”
 Justice Binnie observed that the relevant Ontario legislation, which is similar to s. 24, “is a big tent and not much will be excluded as aberrant to the use of a motor vehicle as a motor vehicle”. Binnie J. quite explicitly rejected the argument that “coverage can be denied if the tortfeasor is engaging (as here) in criminal activity”. He went on to note “[t]he insurer is selling peace of mind to its insured and the endorsement will frequently (and properly) be invoked despite criminality, as in the case of an insured injured by a drunk driver, for example”.
 In my view, the reasoning of Binnie J. in Citadel is consistent with that of Finch J.A. in Chan, so far as it relates to the extent s. 24 covers intentional criminal acts. The case at bar does not involve a tortfeasor seeking coverage for his intentional criminal actions in the face of either policy considerations or an express statutory or contractual exclusion. Rather, it involves an insured seeking coverage for an injury arising from the use or operation of a motor vehicle, which is the foundation for s. 24. The use of the word “accident” to describe the occurrence giving rise to the injury does not, in my view, modify the scope of s. 24 to exclude intentional criminal acts of which the use or operation of a motor vehicle forms an integral part. In any event, in the present case, while an inference can be drawn that the driver of the motor vehicle was complicit in his passenger’s unlawful act, the evidence does not go so far as to preclude a finding that the use or operation of the motor vehicle in the course of those events was, as well, negligent. There was no evidence that the tortfeasor intended to pull over or injure the plaintiff, only that he intended to facilitate a theft that involved some indirect application of force to the plaintiff. The ultimate cause of the plaintiff’s alleged injuries was incidental to the tortfeasor’s purpose and it could not be said to be inconsistent with the meaning of the word “accident” as it is used in s. 24.
 I therefore dismiss the defendant’s application for an order dismissing the plaintiff’s action, and order costs to the plaintiff.
Reasons for judgement were released today compensating a Plaintiff as a result of a 2005 BC car crash.
It was a rear-end accident. The Plaintiff was a passenger. In such cases fault is rarely at issue and here the ICBC defence lawyers admitted fault on behalf of the Defendant. The trial dealt only with the issue of quantum of damages (how much the injuries are worth).
The accident caused the Plaintiff to miss 2 weeks from work. When she returned her physical duties at work were somewhat limited. She took 14 physiotherapy sessions and saw her family physician several times after the accident.
The court’s relevant finding as to the extent of injury can be found at paragraph 64 of the judgement where the court held that:
 The evidence indicates to me that the plaintiff had an initial soft tissue injury to her neck and upper back and she substantially recovered approximately five months after the injuries, although the injuries to her upper back and shoulder area have lingered on to the point where Dr. Yong says they may last another one or two years.
$20,000 was awarded for the Plaintiff’s pain and suffering. No other damages were awarded although a claim for ‘loss of earning capacity’ was advanced.
As is often the case in ICBC claims that proceed to trial, here the defence lawyer argued that the Plaintiff’s award should be reduced for ‘failure to mitigate’. What this means is that if a person unreasonably fails to follow medical advice and following such advice would have made a difference the amount of compensation awarded can be reduced.
Mr. Justice Truscott refused to reduce the Plaintiff’s damages even though the evidence established that she ‘did not do all of her home exercises and id not take physiotherapy when she had asked for it‘.
Why was this evidence not good enough to reduce the Plaintiff’s damages? Because there was no medical evidence that had the Plaintiff followed this course of treatment that her injuries would have recovered any better than they had. This case is a good example of the fact that the defence has the burden of proof when arguing ‘failure to mitigate‘ in an ICBC claim and that expert medical evidence should be tendered to discharge this burden when addressing the effects of a rehabilitation program.
Did you know that either side to an ICBC claim in BC Supeme Court can elect trial by Jury (unless of course the claim is being prosecuted under Rule 66 or 68).
One of the practical effects of trial by Jury is that it makes claims longer and more expensive. I won’t get into all the reasons of why this is at this time but it is generally true.
ICBC often sets claims for jury trials when they involve Low Velocity Impacts or involve injuries with little objective verification.
What if you don’t want a trial by Jury? Can you do anything about it? The answer is sometimes.
Rule 39(27) of the BC Supreme Court rules deals with when a court may refuse a jury trial. One of the main challenges to trial by Jury is that the claims is to complex for the jury to deal with.
Such an applicaiton was brought recently and rejected by Master Tokarek who released written reasons for his decision today.
In this case the Plaintiff sued for various injuries sustained in a series of 4 accidents. In this case there was a significant amount of medical evidence that the Jury would have to deal with. The Plaintiff tried to get rid of ICBC’s jury notice arguing that “in light of all of the available reports, this matter is too complex and intricate for a jury to deal with“.
The court rejected this argument finding that
My impression, upon reading those reports, is that although there are a great many reports to deal with, they do not strike me as being overly complex or difficult. In fact, one or more of the reports, the exact numbers of which I neglect to make a note of so I cannot refer specifically to them in these reasons, but nevertheless one or more of these reports struck me as being very impressive in the way in which the author laid out in layman’s terms some of the definitions and explanations of what the symptoms and injuries were all about……There is in British Columbia, as plaintiff’s counsel candidly admitted, a very strong right to a party to choose a trial by jury, subject to the restrictions imposed by legislation, and therefore the onus does fall to the plaintiff to make its case that the defendant ought not to have its right to a jury trial. As I have said, I believe that the plaintiff has fallen short of satisfying that onus in this particular case.