Tag: icbc injury claims

Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

Written by admin on January 16, 2012. Posted in ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Crashes and Winter Driving Conditions: Take Care to Be Accurate When Calling ICBC

With the first heavy snow of 2012 hitting the Lower Mainland and Greater Victoria comes the expected increase in motor vehicle collisions. With this in mind I’m republishing a post I originally wrote in the early days of this blog reminding injured passengers of the consequences of minimizing details of wrongdoing when reporting a collision to ICBC:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances. Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Repost: Ice, Snow and Your ICBC Injury Claim

Written by admin on November 20, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized. 113 Comments on Repost: Ice, Snow and Your ICBC Injury Claim

The first snow of the year is falling and with it will come the usual increase in motor vehicle accidents. With this in mind I’m republishing a post I originally wrote in the early days of this blog:
Snow in BC has two reliable results 1. Car Accidents, 2. Phone calls to ICBC and lawyers about those car accidents. The second is particularly true in Victoria and Vancouver because of the local populations relative inexperience dealing with winter driving conditions.
In anticipation of the almost certain phone calls I will receive this week I write this post.
If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits. There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering and other losses in these circumstances. Your right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In single vehicle accidents drivers usually only have themselves or the weather to blame.
If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to claim against their policy of private insurance.
Now, if you are a passenger in a single vehicle, weather related accident, and your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you can bring a tort claim against them in addition to claiming your Part 7 Benefits.
If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven then the tort claim can be defeated.
People naturally don’t want to get those known to them in trouble and it is all too common for passengers reporting such a claim to ICBC to readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not careful and you give ICBC the alternate impression with a view towards helping the driver out, your statement may severely damage your ability to bring a tort claim.
Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that an accident was inevitable you will have a much harder time advancing or settling your tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will harm your claim for lawful compensation.

Another Judicial Rejection of ICBC's "Low Velocity Impact" Defence

Written by admin on November 2, 2010. Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

I’ve written numerous times that ICBC’s Low Velocity Impact Defence (“LVI”) is not a legal principle. A defence based on this principle was rejected yet again in reasons for judgement released today by the BC Supreme Court, Vancouver Registry,
In today’s case (Hunter v. Yuan) the Plaintiff’s vehicle was rear-ended by a taxi driven by the Defendant in 2006 in North Vancouver, BC. Fault for the crash was admitted by the rear motorist.
Both parties agreed that the accident was “minor in nature“. Despite the minor nature of the crash the Plaintiff was injured and continued to be troubled by her injuries by the time the claim reached trial some 4 years later. The Defendant argued that this was a “minor accident which resulted in a minimal injury“. In keeping with ICBC’s LVI policy the Defendant argued that the Plaintiff should receive nothing for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) or in the alternative “If the court were to award damages for non-pecuniary loss, the defence suggests that an award should be very modest“.
Madam Justice Morrison rejected the defence submission and awarded the Plaintiff damages for her losses including $35,000 for non-pecuniary damages. In arriving at this figure the Court provided the following reasons:

[68] First, I found the plaintiff to be entirely credible. She did not seek to exaggerate, and gave her evidence in a very direct manner. She was responsive to questions, and did not seek to avoid or be defensive with the tough questions posed on cross-examination. I certainly accept her evidence with regard to her symptoms, past and present. There is no credible or reliable evidence of any pre-existing injuries or conditions, and her injuries and ongoing symptoms are due to the accident of October 20, 2006.

[69] It is true that the force of the accident was not major, but the evidence points to no other cause of the injuries and symptoms experienced by the plaintiff, other than the accident of October 20, 2006.

[70] To say that the plaintiff experienced only three weeks of disability, or six or eight weeks at the most, is to ignore most of the evidence of the plaintiff, her family doctor, her fiancée, her father and Dr. Travlos.

[71] Although by the summer of 2008 the plaintiff felt she was 85% recovered, she testified that at the present time, the flare-ups occur frequently, sometimes once every week or two, or more often, if she does activities that cause such flare-ups. The flare-ups result in tension and muscle knots between her shoulder blades, particularly toward her right shoulder and neck area, and headaches occur. She has sleep disruptions, difficulty getting to sleep, and voluntarily avoids some activities that she enjoyed prior to the accident; she avoids them rather than put herself in a position where pain or a flare-up will occur.

[72] The evidence would indicate that her recovery has plateaued. She takes Tylenol and Cyclobenzaprine on occasion, and she finds that she must remain active and exercise, as inactivity will make her symptoms worse.

[73] The plaintiff’s pain is not chronic and continuous, but she suffers pain and increased pain with certain kinds of exertion. It has been four years since the accident occurred, and Ms. Hunter continues to have pain in her shoulders, particularly her upper right back, and neck. Ordinary daily activities such as carrying groceries, doing the laundry, vacuuming, and certain types of cleaning cause flare-ups, which result in pain.

[74] Counsel for the plaintiff, in addressing the issue of non-pecuniary damages, has cited six cases where non-pecuniary damages ranged from $30,000 to $50,000. Relying primarily onJackman v. All Season Labour Supplies Ltd. and Crichton v. McNaughton, the plaintiff submits that an award of $40,000 would be reasonable for non-pecuniary damages.

[75] I agree that those two cases are helpful, given the evidence in this case, and I would award $35,000 for non-pecuniary damages.

This judgement demonstrates the reality that minimal crashes can result in injury including long-standing injury. The LVI Defence is divorced from medicine and law. The rare occasions when the LVI defence succeeds before a judge is where the Plaintiff is found to lack credibility. When injuries are supported with medical evidence it is rare for a lack of substantial vehicle damage to prove fatal to a personal injury lawsuit.

Pain and Suffering Damages Discussed for Severe Post Traumatic Migraine Headaches

Written by admin on August 30, 2010. Posted in ICBC Chronic Pain Cases, ICBC Headache Cases.

Reasons for judgement were released today awarding a Plaintiff damages for post accident migraine headaches.
In today’s case (Ward v. Klaus) the Plaintiff was involved in a rear-end collision in Chilliwack, BC. Fault was admitted by the rear-motorist focusing the trial on the value of the claim.
The Plaintiff suffered various injuries the most serious of which were post-traumatic migraine headaches. These were so invasive that they required surgical intervention with the installation of a “neurostimulator” in the back of her head. The Court provide the following summary of the Plaintiff’s surgeries:

[16] In May 2008, the plaintiff consulted Dr. Kumar, a neurosurgeon in Regina, for an assessment on the suitability for neurostimulator implants. She qualified and in September, at Regina Saskatchewan, a neurotransmitter was implanted in the back of her neck. It had two leads and an external remote that connected the wires under her skin. From September to mid-October 2008, she had two more operations in Regina and two more temporary implants were imbedded. In December 2008, two permanent implants were installed in the back of her head in the same area as before. To deal with the pain of the operation, she took more medication.

[17] In January 2009, the plaintiff had permanent leads installed at the front of her head.

[18] The implant battery has to be recharged, usually once a week. She keeps it on at all times other than when she is driving. She has a device that plugs into an electrical outlet. It tells her if the battery needs to be recharged. Sometimes it has to charge for up to four hours, but usually it takes an hour or an hour and a half. When pain flares, she can increase the strength of the current from the stimulator. Again, she does not see it as the answer. It simply “takes the edge off”.

Mr. Justice Rice assessed the Plaintiff’s non-pecuniary damages at $150,000. In arriving at this figure the Court provided the following reasons:

[52] In this case, counsel on both sides agree that this was a soft-tissue injury to the neck resulting in continuing neck pain, and continuing generalized moderate headaches with severe migraine headaches, occurring two or three times per week. The pain during such migraine headaches is excruciating, and her pain and suffering as a whole have affected very negatively almost every aspect of her life. According to doctors’ recommendations, she has taken medications that only partially help, and at one point led her to addiction to narcotics. She has undergone surgeries to implant a neurostimulator which has only been moderately successful at best as a means of alleviating the pain. The consensus of the medical experts has been that the plaintiff has reached the point of maximum medical improvement, and that the headaches and pain will continue indefinitely.

[53] At the same time, observing her demeanour as she gave evidence, as well as seeing the videotape evidence shown in court, and considering her inability to answer many questions on the basis that she could not remember, I am afraid there is room for mild caution in accepting her testimony unreservedly. Her frequent inability to recall answers to questions leads me to doubt the reliability of her memory when giving testimony. By this, I do not mean to resile from the impression that she was generally honest and truthful in explaining the excruciating pain she had suffered. It is only in respect of a few details, particularly her work capacity and motivation, that her evidence was not completely satisfactory…

[56] The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis v. Tin, 2008 BCSC 862 at para. 136.

[57] Taking all of the foregoing into account, my view is that the appropriate award for non-pecuniary loss is $150,000. In this amount I take account of all aspects of general pain and suffering, including a reasonable portion attributable to the effect of diminished capacity in her homemaking role.

More on ICBC Claims, Fault and Credibility

Written by admin on August 23, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized.

After a collision occurs it is not uncommon for the parties involved to disagree as to how the crash happened and who is at fault. If there are no independent witnesses to a crash it can be difficult to decide which version is more believable. When these cases go to trial it is vital to give evidence in a consistent, reliable and credible way otherwise the Court may discount what you have to say. Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, dealing with the topic of credibility.
In today’s case (Tierney v. GMAC Leaseco Corporation) the Plaintiff was injured in a motorcycle collision in 2005 in Kimberley, BC. The Plaintiff lost control of his motorcycle and struck a building located on the opposite side of the road from his proper lane of travel. He claimed that the Defendant was at fault for the crash because the Defendant (who was driving a vehicle in the opposite direction of travel) “cut into the corner on his side of the road forcing him to take evasive action by turning sharply.”
The Defendant disagreed arguing that she never came into the Plaintiff’s lane of travel, rather the Plaintiff simply lost control and was responsible for his own injuries. There were no independent witnesses who could satisfactorily comment on how the crash happened leaving the Court to pick between the Plaintiff’s and Defendant’s evidence. Ultimately Mr. Justice McEwan preferred the Defendant’s evidence and dismissed the lawsuit. The Plaintiff’s evidence was at times “uncertain“, “conflicting” and “contradictory“. These were some of the reasons which caused the Court to prefer the Defendant’s version of events. In dismissing the lawsuit the Court held as follows:

[48] The absence of physical evidence, and the unreliability of the various witnesses, including irreconcilable contradictions in the evidence, leaves the court to weigh what it has. This is not a case where both parties are implicated and it is not possible to discern the degree to which each is responsible, leading to an equal split in liability. For the plaintiff to succeed, the court must accept his evidence that, first, he intended to turn right at the curve and second, that the defendant was in his lane at that point. His own evidence and the surrounding evidence and circumstances suggest it is unlikely that his intention at the time was to go up to the highway.

[49] The defendant on the other hand, gives a straightforward story of proceeding from the highway to the curve on Jennings Avenue, having made a recent right turn. She had had little opportunity to accelerate as she approached the curve. She was not preoccupied or distracted. Her evidence is unreliable in the aftermath of the realization that her vehicle was in danger of colliding with the plaintiff’s motorcycle, but not in respect to the details leading up to the event..

[50] I do not think it is possible to say what happened with complete confidence, although I think the defendant’s version of events more likely. What that means for the plaintiff is that he has failed to carry the burden of proof that, on a balance of probabilities, the defendant’s negligence was the cause of the accident. This means, accordingly, that the plaintiff’s action is dismissed.

While there are no novel legal principles arising out of this decision, this case is worth reviewing in full for anyone involved in an ICBC case where credibility will play a crucial role to see the types of facts a Court can take into account when weighing two different versions to a motor vehicle collision. For more on this topic you can click here to read my archived posts discussing credibility in ICBC claims.

Taking the Mystery Out of Examinations For Discovery

Written by admin on August 13, 2010. Posted in Civil Procedure, Uncategorized. 61 Comments on Taking the Mystery Out of Examinations For Discovery

As I previously discussed in the below video, examination for discovery is a process where the opposing side in a BC Supreme Court lawsuit can bring you in front of a Court Reporter and get your sworn answers to questions about relevant topics. Discoveries are designed to learn about your case and to hurt your case. It is one of the most important pre-trial steps in Injury litigation and a Plaintiff’s performance can play a key role in whether the case settles or proceeds to trial.
Most people have some anxiety and apprehension before discovery. One reason for this is because the discovery process is unfamiliar and often Plaintiff’s don’t know what to expect. The best way to ease this anxiety is to learn about the process ahead of time. To that end I’ll let you in on a secret: Most Defence lawyers in ICBC claims use a cheat sheet to guide their questions. This cheat sheet is the Law Society of BC Practice Checklists Manual and the most up to date version was recently released by the BC Law Society. You don’t need to be a lawyer to get a copy, it’s available free on-line and can be found here .
Most ICBC defence lawyers use this or a similar checklist to structure their questions. More junior lawyers typically follow the script fairly closely while more experienced lawyers deviate frequently. Whoever your opposing lawyer may be you can bet they will cover many of the topics highlighted on this checklist at your examination for discovery.
If you spend some time going over this form you will learn not only what types of areas will be covered at your discovery but also why these questions will be asked. With this knowledge hopefully the discovery process will be a little less mysterious and less stressful.

You Can't Sue Twice; The Doctrine of Res Judicata

Written by admin on June 28, 2010. Posted in Civil Procedure, Uncategorized. 57 Comments on You Can't Sue Twice; The Doctrine of Res Judicata

Res Judicata is a legal principle which prevents a claimant from having their legal issues decided twice. Once you’ve had your day in Court on an issue you are stuck with the result (subject to an appeal). You can’t sue again and have a second trial hoping for a different result. Reasons for judgement were released today by the BC Court of Appeal discussing the scope of this principle.
In today’s case (Innes v. Bui) the parties were involved in a a two vehicle intersection collision in 2001. They approached each other from opposite directions. The Plaintiff (Innes) attempted to go through the intersection and the Defendant (Bui) commenced a left turn. The vehicles then collided.
ICBC, as is often the case in British Columbia, was the insurer for both parties. ICBC decided that the Ms. Bui was entirely at fault. This raised her insurance premiums. Ms. Bui sued ICBC in small claims court arguing that she was not at fault and should have her increased premiums returned. Eventually Ms. Innes was substituted for ICBC. Ms. Innes was defended by an ICBC appointed lawyer. ICBC argued that Ms. Bui was at fault.
At trial the Judge found that both Ms. Innes and Ms. Bui were ‘honest people” and he could not choose between their testimony. The Small Claims judge dismissed the lawsuit finding that “In essence, I cannot choose between them, and to use a probably inappropriate sports metaphor, tie goes to the defendant in a case like this. In other words, because I cannot decide who it is that I believe, I have to dismiss the claim, and that is what I am doing.”
At the same time Ms. Innes filed a separate lawsuit against Ms. Bui in the BC Supreme Court alleging that Ms. Bui was at fault. The Plaintiff was asking for compensation for her personal injury claims. ICBC appointed a lawyer to Defend Ms. Bui and in this lawsuit argued that Ms. Innes was at fault. ICBC brought a motion asking the lawsuit to be dismissed based on the principle of “res judicata“. They argued that since the Small Claims judge already heard the issue of fault and called it a ‘tie‘ Ms. Innes’ case needs to be dismissed in the same way that Ms. Bui’s case was.
A chambers’ judge agreed and dismissed the lawsuit. The Plaintiff appealed. The BC High Court overturned the dismissal and found that the Chamber’s judge misapplied the law of ‘res judicata’. The BC Court of Appeal provided the following useful analysis setting out the limits of the res judicata principle:

19] There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel. Both operate where the court has adjudicated a cause of action between two or more parties and one of them seeks to re-litigate on the same facts. Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding. Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.

[20] The pre-conditions to making out issue estoppel are stated in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254:

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:

… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies …..

It seems to me that in the circumstances of this case, all that had to be considered on both motions before the court was whether the criteria set out in Angle had been met and, if they had been met, whether the court should exercise its discretion against applying the doctrine of res judicata.

[30] In my opinion, it cannot be said that the question of liability for the collision was adjudicated upon in the Small Claims proceeding. Having decided as a fact that the parties left their respective stop signs at “more or less the same time”, the Small Claims judge failed to consider the other important factual question before him – whether Ms. Bui had her left-turn signal on. Furthermore, he failed to consider the rules of the road imposed upon each of the parties under the applicable sections of the Motor Vehicle Act, R.S.C.B. 1996, c. 318 and how those rules would apply to the determination of responsibility in tort for the collision. This was not a case of inevitable accident or of no negligence. One or the other of the parties was wholly responsible, or liability was to be divided.

[31] The reasons of the Small Claims judge fell well short of deciding the negligence question. That issue remains alive in the Supreme Court action. The res judicata arguments of both parties fail.

[32] The above is enough to allow this appeal.

$90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

Written by admin on June 19, 2010. Posted in ICBC Elbow Injury Cases, ICBC Privacy Issues, Uncategorized. 99 Comments on $90,000 Non-Pecuniary Damages Awarded for Torn Bicep Tendon; Video Surveillance Discussed

(photo depicting muscle deformity from ruptured distal bicep tendon)
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for a rather unique injury, a ruptured bicep tendon.
In this week’s case (Taylor v. Grundholm) the Plaintiff was involved in motor vehicle collision. His vehicle was struck by the Defendant’s as the Plaintiff “opened the driver’s side door to reach into the back to retrieve a box of soap….His left hand was holding the steering wheel and he was leaning into the back seat area when the collision occurred.”
The Plaintiff’s vehicle sustained significant damage and was written off. Fault for the collision was admitted.
The Plaintiff sustained a variety of soft tissue injuries. The Plaintiff also tore his bicep tendon which caused a muscle deformity. The most contentious issue was whether the tendon was torn as a result of the collision. Ultimately the Court concluded that it was and went on to assess the non-pecuniary loss for this injury at $90,000. In reaching this decision Madam Justice Maisonville noted as follows:

[42] I find the injury to Mr. Taylor’s biceps tendon and to his upper left quadrant did occur as a result of the accident. Nowhere in the medical records is there a note of this injury — now described by Dr. Leith as a “noticeable deformity” — prior to the accident. The evidence from the physicians was that there would have to have been a significant event to cause this type of injury.

[43] The biceps tendons are attached to the bone, which anchors the muscle. When flexed, the muscle will appear to be at about the middle of the upper arm. If an individual has sustained a biceps tendon tear near the elbow (distal), the muscle is no longer anchored and will bunch up proximally, appearing much like the cartoon character Popeye’s arm. This is a noticeable deformity…

49] Dr. Leith further testified that a distal biceps tear is almost never repaired unless it is acute because people with this injury usually have no problems with function; rather (as noted), they will have problems with strength. Mr. Taylor is thus left with a lifelong cosmetic deformity in addition to the attendant loss of strength…

[60] There is no issue that the plaintiff has suffered a debilitating loss. He will no longer be able to look after his cabin and it will have to be sold. He will no longer be able to enjoy the activities that he enjoyed with his friends and family. Additionally, Mr. Taylor was nearing retirement. As Griffin J. noted in Fata v. Heinonen at para. 88:

The retirement years are special years for they are at a time in a person’s life when he realizes his own mortality. When someone who has always been physically active loses his physical function in these years, the enjoyment of retirement can be severely diminished, with less opportunity to replace these activities with other interests in life. Further, what may be a small loss of function to a younger person who is active in many other ways may be a larger loss to an older person whose activities are already constrained by age. The impact an injury can have on someone who is elderly was recognized in Giles v. Canada (Attorney General), [1994] B.C.J. No. 3212 (S.C.), rev’d on other grounds (1996), 21 B.C.L.R. (3d) 190 (C.A.)…

[67] In all the circumstances, I award the plaintiff $90,000 in non-pecuniary damages..

The Court went on to reduce this award by 10% finding that the Plaintiff failed to mitigate his damages by not attending physiotherapy which was recommended by his treating physicians.

______________________________________________________________________________________________

Video Surveillance

This case is also worth reviewing for the Court’s discussion of the impact of video surveillance in injury litigation.

As I’ve previously posted, video surveillance can and does occur and it can be intrusive. However, video surveillance in and of itself does not harm a person’s injury claim. Damage is only done if the video demonstrates that the Plaintiff has not been truthful about their injuries / limitations. In today’s case Madam Justice Maisonville was quick to dismiss the impact of video that did not contradict the Plaintiff’s evidence as can be seen from the following passage:

[50] Mr. Taylor had been placed under surveillance and videotaped by investigators retained by the defendant on certain days in March and April of 2010. I find he was not shown to be doing anything inconsistent with his statement that he sustained an injury and was in pain. At one point, he was shown seated in the driver’s seat of his vehicle and reaching to about ear level with his left arm to grab the seatbelt. It was not a movement where he had to twist his body in any way, significantly arch his back or lift his arm directly over his head. Similarly, he was shown removing his hat with his right hand and smoothing his hair down with his left. I do not find those motions to be inconsistent with his injury. He was not directed by his physicians to cease using his left arm. The fact that he did not show obvious signs of distress when doing these movements is not inconsistent with his injury. He was not observed to be lifting anything. Accordingly, I do not find the videotape surveillance inconsistent with the evidence of the plaintiff and his physicians.

BC Court of Appeal to Consider Discretionary Costs Awards and Formal Settlement Offers

Written by admin on June 16, 2010. Posted in BC Supreme Court Costs Cases, Uncategorized. 61 Comments on BC Court of Appeal to Consider Discretionary Costs Awards and Formal Settlement Offers

After dozens of trial judgements which have applied Rule 37B (the current rule dealing with formal settlement offers which will be replaced with the almost identical Rule 9 on July 1, 2010), the BC Court of Appeal has agreed to hear what I believe will be their first case dealing with the application of this rule.
Reasons for judgement were published today on the BC Court’s Website where the BC High Court agreed to hear such an appeal. In today’s case (Gehlen v. Rana) the Plaintiff was injured in a BC motor vehicle collision. The Plaintiff sued. Prior to trial ICBC made a formal settlement offer of $22,000. The Plaintiff rejected this and proceeded to trial. At trial a jury awarded just over $13,000 in damages.
In these circumstances the trial judge had the discretion to order that the Plaintiff pay the Defendant’s trial costs. Mr. Justice Leask refused to do so and instead ordered that the Defendant pay the Plaintiff’s costs. (You can click here to read my article discussing the trial decision).
The Defendant (through ICBC) asked for permission for the BC Court of Appeal to hear the case and they agreed to do so. In deciding that this case merits an appeal the BC High Court reasoned as follows:

[3] I am satisfied that the defendant has met the test for leave to appeal on both grounds, as that test is set out in Power Consolidated (China) Pulp Inc. v. British Columbia Resources Investment Corp. (1988), 19 C.P.C. 3d 396 (B.C.C.A.) (Chambers). With respect to the merits of the appeal, I appreciate that an order for costs is a discretionary order to which an appellate court will give considerable deference. I am nevertheless satisfied that the first ground of appeal may be characterized as a question of law, and the second as an error in principle. In fact, counsel advises that leave has been granted in another appeal on the question of whether it is appropriate to adjust costs on the basis that one party chose a jury trial.

[4] The issue is of significance to the parties as the order under appeal entitles the plaintiff to costs in the range of $47,000, while if the defendant is successful he will recover costs in the range of $8,000.

[5] It is more difficult to see significance to the practice in this appeal, but I do not find that militates against granting leave. The defendant does say that this court has not had the opportunity to hear many cases that provide guidance on R. 37B and its interaction with R. 57(10).

[6] Finally, being an order for costs at the end of the action there is no need to consider possible delay due to the appeal.

As I recently wrote, ICBC has asked the Court of Appeal to also consider the issue of ‘costs’ awards when Plaintiff’s receive a judgement below $25,000 at a BC Supreme Court trial and these appeals may be heard together.

Clarity from the BC High Court will be welcome on numerous issues regarding the effects of formal settlement offers and costs awards after trial and I will be sure to report the highlights of the decisions when they are pronounced.