Tag: icbc injury claims

ICBC Injury Claims and Future Wage Loss

Written by admin on February 24, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, ICBC Whiplash Cases, Uncategorized. 49 Comments on ICBC Injury Claims and Future Wage Loss

One of the most difficult types of damages to value when a person sustains serious and permanent injuries through the fault of another in a BC Car Crash is that of ‘Future Wage Loss’.
Courts in British Columbia often view a person’s ability to earn a living as a ‘capital asset’ and if disabling injuries are sustained then that capital asset becomes diminished. Accordingly BC Courts often assess damages for future wage loss as damages for a ‘diminished earning capacity’.
The basic principles that courts consider in awarding damages for ‘diminished earning capacity’ were set out almost 25 years ago in a BC Supreme Court case named Brown v. Golaiy, These factors are as follows:

The means by which the value of the lost, or impaired, asset is to be assessed varies of course from case to case. Some of the considerations to take into account in making that assessment include whether:

1. The plaintiff has been rendered less capable overall from earning income from all types of employment;

2. The plaintiff is less marketable or attractive as an employee to potential employers;

3. The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

In 2007, in a case named Steward v. Berezan, the BC Court of Appeal rejected a trial judges award for diminished earning capacity stating that “… The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur…“

Ever since Berezan many ICBC Injury Defence Lawyers have argued that the law has changed since Brown v. Golaiy and that there is a higher burden to reach before damages for future wage loss can be awarded.

Reasons for judgement were released today by the BC Supreme Court (Ashmore v. Banicevic) dealing with this argument and concluding that the factors set out in Brown v. Golaiy remain good law. In a thorough analysis Madam Justice Smith gave the following reasons:

[140] While a literal reading of that statement might indicate a change in the law, embodying an express direction to inquire first into whether there is a substantial possibility of future income loss before embarking on assessment of the loss (see Chang v. Feng, 2008 BCSC 49; 55 C.C.L.T. (3d) 203, and Naidu v. Mann, 2007 BCSC 1313, 53 C.C.L.T. (3d) 1), the Court of Appeal inDjukic v. Hahn, 2007 BCCA 203, 66 B.C.L.R. (4th) 314 (at para. 14) limited Steward v. Berezan to its facts, stating:

…The error of the trial judge in Steward was in awarding damages for loss of earning capacity based on the plaintiff’s inability to work as a carpenter in circumstances where he had not worked as a journeyman carpenter for twenty years prior to the trial and, at age 55, did not contemplate any return to the trade. The case turned on its facts and did not establish any new principle of law. Conversely here, the assessment was based on a business actively pursued by both respondents when the accidents intervened and not on any long abandoned occupation without a prospect of their return to it. I am satisfied that Steward has no application in the case at bar.

[141] In Sinnott v. Boggs, the plaintiff was a 16-year-old girl who had been 11 at the time of the accident. The medical prognosis was that she would continue to suffer neck and shoulder aches, ongoing discomfort and intermittent headaches. The trial judge assessed non-pecuniary damages of $35,000, past wage loss of $2,400 and lost earning capacity of $30,000 “for being less marketable as an employee because of the limitations on her ability to work competitively in all jobs previously open to her”. The assessment of damages was upheld on appeal. Mackenzie J.A. referred to the submission of the defendant on appeal that since there was no finding that any particular types of work were foreclosed to the plaintiff, no award for lost earning capacity could be made. He referred to a number of authorities, including Steward v. Berezan, at para. 11, and stated:

All of those cases involved middle-aged plaintiffs in settled occupations. Their continuing symptoms resulted in continuing pain and occupational discomfort but they did not reduce the plaintiffs’ ability to earn income in their chosen occupations. There was no prospect that they would change employment to occupations where their earning capacity would be impaired.

[142] MacKenzie J.A. then stated at para. 13 – 17:

In my view, the limitation on loss of earning capacity awards advanced by the appellant is not supported either in logic or by the authorities.

Three of the four factors outlined in Brown are broad enough to support an award in circumstances where a plaintiff is able to continue in an occupation but the ability to perform and the earning capacity resulting from that ability are impaired by the injury.

The line between non-pecuniary damages and damages for loss of earning capacity is between losses that sound in pain and suffering and loss of non-remunerative amenities on the one hand, and pecuniary losses in the form of a reduced ability to earn income on the other. There is no reason why an injury which permits a plaintiff to continue in a particular occupation but at a reduced level of performance and income should not be compensated for that pecuniary loss through damages for loss of earning capacity.

In the case at bar, Ms. Sinnott is a young person who has not yet established a career and has no settled pattern of employment. In such circumstances, quantifying a loss is more at large. Southin J.A. commented on this distinction in Stafford

[42] That there can be a case in which a plaintiff is so established in a profession that there is no reasonable possibility of his pursuing, whether by choice or necessity, a different one is obvious. For instance, on the one hand, if a judge of this Court were to be permanently injured to the extent that he or she could no longer do physical, in contradistinction to mental, labour, he or she would have no claim for impairment of earning capacity because the trier of fact gazing into the crystal ball would not see any possibility that the judge would ever abandon the law for physical labour, assuming that immediately before the accident the judge was capable of physical labour. But, on the other hand, if a plaintiff is young and has no trade or profession, the trier of fact gazing into the crystal ball might well consider whether the impairment of physical ability will so limit his future employment opportunities that he will suffer a loss. See e.g. Earnshaw v. Despins (1990), 45 B.C.L.R. (2d) 380 (C.A.).

[43] There is, if I may use the word, a continuum from obviously no impairment of earning capacity from a permanent physical impairment, no matter how serious the impairment, to a very large potential loss which must be based on all the circumstances of the particular plaintiff.

I agree with those observations. Ms. Sinnott is in a category of those who are young and without a settled line of work. The trial judge has found that Ms. Sinnott faces limitations on her ability to work competitively in jobs that were previously open to her. In my view, that finding is an adequate foundation for the trial judge’s award. I am satisfied that there was evidence to support the trial judge’s conclusions on the facts and there is no palpable and over-riding error of fact which would permit this Court to disturb her conclusion or award.

[143] I conclude that the approach I should take to the assessment of lost earning capacity has not changed. Accordingly, I must consider, with reference to the factors listed in Brown v. Golaiy, whether the evidence establishes the basis for an award in this case, and if so, at what level.

______________________________________________________________________________________

On another note, today’s case dealt with chronic soft tissue injuries and serious headaches. In awarding $80,000 for the Plaintiff’s non-pecuniary losses, the court made the following findings of fact about the Plaintiff’s injuries and prognosis:

[113] I have considered all of the evidence given by treating physicians and other health care practitioners, as well as the evidence of Dr. Jung and Dr. Schweigel, who saw the plaintiff for the purpose of providing medical-legal reports. Dr. Schweigel deferred to the expertise of Dr. Blasberg with respect to the jaw injury; as well, he saw the plaintiff on only one occasion, while Dr. Bowlsby and Dr. Condon both saw him on a number of occasions. Both Dr. Bowlsby and Dr. Condon are very experienced practitioners and struck me as fair-minded witnesses who were not advocating for their patient. Dr. Jung’s two examinations of the plaintiff were thorough and well-documented. I accept the evidence of Dr. Condon, Dr. Bowlsby and Dr. Jung, who all had extensive contact with the plaintiff, and do not accept the evidence of Dr. Schweigel where it is in conflict with their evidence. I also accept the evidence of Dr. Blasberg.

[114] Upon consideration of all the evidence, I find that Mr. Ashmore suffered a whiplash injury in the motor vehicle accident affecting his jaw, neck, shoulders and back. I find that he suffers a continuous low-grade headache and serious headaches at least twice weekly, and that he continues to experience right-sided neck and upper back pain, pain with swallowing, and pain in the region of the jaw joint. There is no evidence that he suffered from these symptoms prior to the motor vehicle accident. I do not find on the evidence that stress causes his symptoms, although it may exacerbate them. I find that but for the accident Mr. Ashmore would not experience the persistent headaches which I find are his worst ongoing symptom, and that but for the accident he would not suffer the other symptoms I have referred to. I find that the plaintiff has met the burden of showing on the balance of probabilities that the defendant’s negligence caused his injuries.

[115] The plaintiff’s symptoms arising from the injuries caused by the accident have caused him frequently to require rest in the middle of the day, necessitating work late into the night. The extent of those symptoms is shown by the fact that they have caused him to give up most of the very active sports he formerly enjoyed, and have constrained his ability to assist with the care of his young children and to enjoy the kind of life he led before the accident. As well, these symptoms have reduced the amount of time and energy he has available for work outside his regular employment. Finally, the symptoms have led him to spend considerable time pursuing relief through various forms of treatment.

[116] Taking into account the opinion evidence of all of the expert witnesses as to the likelihood of further recovery, I find that Mr. Ashmore is not likely to make a full recovery, although he may experience some improvement to the point where he will be able to manage his symptoms better.

Pain and Suffering and Your ICBC Injury Claim

Written by admin on February 23, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 107 Comments on Pain and Suffering and Your ICBC Injury Claim

If you have an ICBC Injury Claim for Non-Pecuniary Damages as a result of a BC Car Crash (a tort claim) the best way to determine the potential value of your non-pecuniary damages (damages for things such as loss of enjoyment of life, pain and suffering) is to look at how courts have treated similar ICBC injury claims.
When looking to previous court cases for guidance some of the things you will want to look at are similarities with the type of injury, the severity of injury, the age of the Plaintiff, whether the injury involves a dominant or servient limb, the types of treatments involved and the prognosis. Another useful factor is recency. If you can’t find recent cases with similar injuries and are relying on older cases you should adjust the damages for inflation to get a sense of what they would be worth today.
No two injuries are identical and the best one can usually hope to do is find ICBC Injury Cases with a similar injuries to help establish a potential range of damages. In recognizing the the uniqueness of each ICBC Injury Claim Mr. Justice Halfyard said the following in the case of Tuner v. Coblenz:
It is well accepted that previously-decided cases have limited value which usually consists in establishing a general range of damages within which the award in a particular case may fall. No two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. The injuries sustained by one plaintiff will never be the same as those received by another, in kind or severity. The reaction of any two persons to the pain of a similar injury, or to particular treatments, will be different. The length of time that has passed between the date of the injury and the date of trial will vary from case to case, and can be a significant distinguishing feature.
As an ICBC Injury Claims Lawyer I have enjoyed publishing this blog to help people have access to a database of ICBC Injury Claims. Time permitting I intend to keep this service up. To this end, here is the latest ICBC Injury Claims update.
Reasons for judgement were released today by the BC Supreme Court (Rattenbury v. Samra) awarding a Plaintiff $30,000 in non-pecuniary damages as a result of an ICBC Injury Claim.
In today’s case the 23 year old plaintiff was injured when he was involved in an intersection crash in Surrey, BC. The crash occurred when the Defendant attempted a left hand turn in front of the Plaintiff’s vehicle. Fault was admitted leaving only the issue of quantum for trial (value of the claim).
In this case the Plaintiff suffered a concussion and had headaches, neck pain and shoulder pain. These injuries resolved fairly quickly. The most serious injury was an alleged low back injury. The Plaintiff’s physician gave evidence that the collision caused a disc injury to the L5/S1 level of the Plaintiff’s spine.
The court rejected this opinion and found that this disc injury could have easily preceded the car crash given the Plaintiff’s very active lifestyle. The court did find, however, that even if the disc injury was unrelated to the car crash this disc injury became symptomatic with pain because of the collision. The court made the following finding:

[86] I find myself unable to accept Dr. Fritz’s opinion that the disc injury occurred in the motor vehicle accident. Certainly the disc injury does exist but Dr. Fritz agrees that it is impossible to prove when it occurred and it could just as easily have occurred from the plaintiff’s other activities than from the motor vehicle accident. Dr. Fritz did not treat the plaintiff before his accident and it is therefore understandable that he would conclude that the disc injury occurred in the accident when the plaintiff demonstrated a restricted straight leg raising after the accident. However, I do not think that is enough to prove the disc injury occurred in the accident itself.

[87] In my view it is enough to prove, however, that even if the disc injury preceded the accident, it became symptomatic with back pain because of the accident. The evidence is that the plaintiff had no back problems before the accident and was a completely healthy and physically active young man. As a result of the accident he could not play soccer for six months and was unable to do any of the heavy lifting in his job at Black & Lee.

[88] The plaintiff’s evidence of originally not being able to do any heavy lifting at work but being able to do it at the time of his examination in January 2008, and then not being able to do it again by the time of trial, is certainly strange. However Dr. Fritz was never questioned about this evidence and it is logical to me that the plaintiff may have been able to resume the heavy lifting for a time after the accident, with back pain, but over time became too wearing on him and he had to stop.

[89] I am satisfied that it has been proven that the plaintiff has chronic back pain resulting from the disc injury, even if that injury preceded the accident. I must accept Dr. Fritz’s opinion that it is chronic because I have no other medical opinion.

[90] I do conclude, however, this chronic back pain is only mild in nature, in the nature of a nagging back pain that does not disable the plaintiff from pursuing his soccer at the highest level or his golf or any other sports that he used to enjoy, and does not prevent him from working full time at the business in a more supervisory role.

The following damages were awarded after a 2 day trial:
Non-Pecuniary Damages: $30,000
Past Wage Loss: $1,088
Special Damages: $271.56

A Busy day with ICBC Injury Claims

Written by admin on February 19, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Head Injury Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 42 Comments on A Busy day with ICBC Injury Claims

Several Judgements were released today by the BC Supreme Court addressing quantum of damages in ICBC Injury Claims. Here are the highlights of these judgements
In Guilbault v. Purser, Mr. Justice Blair from Kamloops, BC awarded a Plaintiff $75,500 in total damages as a result of an ICBC Claim arising from a August 2004 collision. The key findings of fact were as follows:

30] Ms. Guilbault describes the complaints which she attributes to the August 29, 2004 accident as including her right hip, neck and shoulder pain and her headaches as having slowed her down and preventing her from doing things that she has wanted to do. Her horse breaking and wakeboarding activities have largely ended because both activities cause her neck problems. Ms. Guilbault also testified that although her participation in many other outdoor pursuits has been diminished as a result of the injuries she has been able over time to return to those activities, just not as actively as before. She continues to suffer some neck pain and headaches, but not to the same extent as previously and she appears to have developed mechanisms to cope with and diminish her neck pain and headaches.

[31] I am satisfied that as a result of the August 29, 2004 accident Ms. Guilbault suffered soft tissue injuries to her neck, shoulder and right hip. I accept that her right hip complaint was an exacerbation of a pre-existing condition which followed her being kicked by a horse approximately 10 years before. I also find that as a result of the accident, Ms. Guilbault suffered from particularly distressing headaches. However, I also conclude that over time the complaints emanating from the accident have been largely resolved, although she continues to suffer the occasional headache and some neck pain.

[32] Ms. Guilbault has taken her pleasure in life from the outdoors and has enjoyed a physically active life, whether in her recreational or her employment pursuits. I consider it likely that those interests developed in part because of her dyslexia and attention deficit disorder which made scholastic endeavours difficult to pursue, but that had no or little impact on her ability to perform and thrive on physically demanding work around her family’s farm and her recreational pursuits. Her complaints following the August 2004 accident have impacted, I conclude, on her physical capabilities over the past four and a half years and will continue to impact on those capabilities to some degree into the future. To Ms. Guilbault, who so relies on her physical capacities for her enjoyment of life, such injuries have a more significant impact than on those whose lifestyle is more sedentary. The greater impact of the injuries to Ms. Guilbault and her lifestyle must be reflected in the measure of the non-pecuniary damages to which she is entitled.

The following damages were awarded:

Non-pecuniary damages:	$35,000.00
Special damages:	$8,500.00
Past loss of wages:	$12,000.00
Loss of capacity:	$20,000.00
TOTAL:	$75,500.00

In another ICBC Injury Claim Judgement released today (Haag v. Serry) Just over $120,000 in total damages were awarded to a Plaintiff injured in a 2005 collision which occurred in Surrey, BC.
The Injuries included soft tissue injuries and the onset of symptoms in the Plaintiff’s arthritic facet joints. Damages were awarded as follows:

[109] In summary, my conclusions are as follows:

(a) The accident on October 9, 2005 caused Mr. Haag to suffer soft tissue injuries and activated facet joint arthritis which has resulted in Mr. Haag suffering chronic lower back pain.

(b) I award Mr. Haag non-pecuniary damages in the sum of $63,000, which takes into account a reduction to reflect my conclusion that Mr. Haag comes within the “crumbling skull” rule.

(c) Mr. Haag’s claim for past income loss is dismissed.

(d) I award Mr. Haag $60,000 for loss of earning capacity.

(e) Mr. Haag is entitled to recover special damages in relation to the cost of physiotherapy treatments (including mileage) and for mileage in relation to his visits to Dr. Rebeyka up to the end of 2007 only. I will leave counsel to calculate the dollar amount. The claims for the cost of physiotherapy treatments (including mileage) and mileage in relation to Mr. Haag’s visits to Dr. Rebeyka in 2008 are dismissed.

(f) With respect of the balance of special damages claimed, Mr. Haag is entitled to recover these amounts.

The third ICBC Injury Claim judgement released by the BC Supreme Court today (Majewska v. Partyka) involved a 2007 collision which occurred in Coquitlam, BC. The Plaintiff suffered a soft tissue injury to her neck, lower back and a concussion. Her syptmoms improved by about 80% by the time of trial. The court was unable to conclude whether the symptoms would fully recover or not.

General Damages were assessed as follows:

(a)	Non-Pecuniary Damages	$30,000
(b)	Loss of Income to Trial	$15,000
(c)	Loss of Earning Capacity	$15,000
(d)	Future Care	$ 500

The last auto injury judgement released by the BC Supeme Court today was Moore v. Brown from the Victoria Registry. This case involved serious orthopaedic and soft tissue injuries in a 2005 motorcycle accident. Damages were assessed as follows:

1.	Pain and suffering	$115,000
2.	Past wage loss (gross)	$75,000
3.	Impairment of earning capacity	$262,000
4.	Special damages	$47,400
5.	Future care	$75,000

Whew! Now back to work.

Court of Appeal finds Bicyclist 60% at Fault in ICBC Injury Claim

Written by admin on February 19, 2009. Posted in ICBC Liability (fault) Cases. 50 Comments on Court of Appeal finds Bicyclist 6050 at Fault in ICBC Injury Claim

I am pressed for time today so this ICBC Injury Law update will be short on detail.
In reasons for judgement released today by the BC Court of Appeal (Quade v. Schwartz) a Trial judgement holding a bicyclist 75% at fault for an intersection collision with a motorist was overturned and the Court of Appeal determined that the cyclist was 60% at fault for the the collision.
I blogged about the trial level judgement when it was released and you can read my previous post for background.
Today the Court of Appeal found the trial judgement to be plainly unreasonable and engaged in the following analysis in finding a lesser degree of fault for the cyclist:

[14] The Negligence Act, R.S.B.C. 1996, c. 333 provides, by s. 6, that apportionment of fault is a question of fact. Accordingly, apportionment of fault should not be varied on appeal unless the appellant can demonstrate some palpable or overriding error in the trial judge’s assessment of the facts, or there are “strong and exceptional circumstances”: see Stein v. “Kathy K” (The), [1976] 2 S.C.R. 802; Ryan v. Victoria (City), [1999] 1 S.C.R. 201 and Housen v. Nikolaisen, [2002] 2 S.C.R. 235.

[15] The defendant also relies upon the standard of review applicable on appeal from proceedings conducted on summary trial under Rule 18A. It must be demonstrated that the judge’s conclusion cannot reasonably be supported: see Orangeville Raceway Ltd. v. Wood Gundy Inc., 59 B.C.A.C. 241, 6 B.C.L.R. (3d) 391, and Colliers Macaulay Nicolls Inc. v. Clarke, [1989] B.C.J. No. 2455.

[16] Apportionment of fault is made not as an assessment of the relative degrees to which the parties’ conduct is implicated causally in the damages suffered, but rather on the relativeblameworthiness of the parties’ conduct. In Cempel v. Harrison Hot Springs Hotel Ltd., 100 B.C.A.C. 212, 43 B.C.L.R. (3d) 219 Mr. Justice Lambert said:

[19] … The Negligence Act requires that the apportionment must be made on the basis of “the degree to which each person was at fault”. It does not say that the apportionment should be on the basis of the degree to which each person’s fault caused the damage. So we are not assessing degrees of causation, we are assessing degrees of fault. In this context, “fault” means blameworthiness. So it is a gauge of the amount by which each proximate and effective causative agent fell short of the standard of care that was required of that person in all the circumstances.

[20] The approach to apportionment that I have described is supported by the decisions of this Court in Ottosen v. Kasper (1986), 37 C.C.L.T. 270 (see particularly at p.277) and Dao v. Sabatino (1996), 29 C.C.L.T. (2d) 62 (see particularly at p.75). In the Ottosen case the point was put in these words:

The words used are the words of fault. The question that affects apportionment, therefore, is the weight of fault that should be attributed to each of the parties, not the weight of causation.

[Emphasis added]

[17] In this case, the judge said the plaintiff’s conduct was “extremely careless and showed little concern for safety” (para. 63).

[18] In considering the defendant’s relative blameworthiness, the trial judge said only that he should have appreciated the need to be vigilant for the potential of a cyclist approaching in the curb lane.

[19] With respect, this characterization of the defendant’s relative degree of blameworthiness fails to take account of a number of matters. First, there is no reference to the duty owed by a left-turning driver under s. 174 of the Motor Vehicle Act to yield the right of way to oncoming through-traffic that is so close as to constitute an immediate hazard.

[20] On the trial judge’s findings of fact, there is no doubt that the plaintiff had the statutory right of way. She found that:

1. when the defendant was starting to cross the northbound lanes, the plaintiff was in a well-lit area (para. 41);

2. the defendant should have had an unobstructed view of him (para. 42);

3. the defendant should have seen the plaintiff before pulling out in front of him because the plaintiff was there to be seen (paras. 43 and 60);

4. the plaintiff was south of the intersection when the defendant started to turn left; and

5. the plaintiff was an immediate hazard when the defendant began his left turn (para. 56).

On all of these findings, the plaintiff enjoyed the statutory right of way under s. 174 of the Motor Vehicle Act, and was entitled to expect that the defendant would yield the right of way to him. In the judge’s words, the plaintiff “had no reason to suspect that Mr. Schwartz would pull out in front of him” (para. 57).

[21] Yet there is no mention of these facts, nor of the defendant’s breach of statutory duty in the trial judge’s assessment of the relative blameworthiness of the two parties.

[22] I infer from the trial judge’s holding that the plaintiff was “extremely careless”, and from the apportionment of fault that she made, that she considered the plaintiff’s negligence in failing to have a lighted headlight on his bicycle to be far more blameworthy conduct than the negligence of the defendant as detailed above. It is difficult to understand why this would be so, and the judge provides no explanation.

[23] There is no doubt that in riding at night without a lighted headlight, the plaintiff demonstrated a lack of reasonable care for his own safety. There is also little doubt that the absence of a headlight on the bicycle made it more difficult for oncoming motorists to see the plaintiff.

[24] In Chesley v. Irvine, [1987] B.C.J. 520 (C.A.), a motorcyclist rode into a Kamloops intersection in the hours of darkness without a headlight on the motorcycle. The cyclist collided with the defendant who was making a left turn in his vehicle in the intersection. The trial judge held the motorcyclist 40% responsible, and the driver of the left turning vehicle 60% responsible. In this Court, Mr. Justice Taggart said:

Each driver here had a duty of care to the other. Each was required to maintain an appropriate look-out for other vehicles. Each had a duty to take care to avoid an accident. In addition, the defendant, as the driver turning left across two lanes in which southbound traffic might be expected, had an obligation to insure that she could safely make the turn.

The judge found her look to the north for southbound traffic was casual and insufficient. I see no basis upon which we could or should interfere with that conclusion. But what the defendant was looking for was a vehicle with lights on. That is what she should have been looking for. She did not see that kind of vehicle for the good reason that it was not there. The vehicle that was there had no lights on.

In my opinion, the plaintiff in these circumstances cannot rely on his full dominant position on the highway and the judge was in error in according him that dominant position. Furthermore, the defendant’s vehicle was there to be seen by the plaintiff. Unlike the plaintiff’s motorcycle, the lights of the defendant’s vehicle were on, as was her left turn signal. The plaintiff failed to see it and, consequently, failed to take, so far as can be ascertained, any action to avoid the collision.

In the circumstances of this case I think we are entitled to intervene and reapportion the degrees of fault. I would allow the appeal and find the plaintiff 60% at fault and the defendant 40%.

[25] Lambert J.A. in concurring reasons said:

The Supreme Court of Canada adopted the line of English authorities. The stricture is imposed on this court that we should not vary an apportionment unless we are convinced it is clearly wrong. Mr. Justice Ritchie, for the Supreme Court of Canada, said it would require a very strong and exceptional case.

But when we can indentify the specific point on which we conclude there was an error by the trial judge that affected his apportionment then that will be a very powerful circumstance to persuade us that his apportionment must be reconsidered.

In this case, immediately before the trial judge made his apportionment he said:

“Nonetheless he was in the dominant position.”

Referring to the plaintiff on his motorcycle. But the significant factor is that the headlight of his motorcycle was not on. The fact that that headlight was not on did not cause him to lose his dominant position, but it made the dominant position much less significant a factor than it would otherwise have been. That reduced significance does not seem to have been considered by the trial judge at the point in his judgment where he made his apportionment.

[26] In the result, the Court varied the parties’ relative degrees of fault, holding the defendant 40% at fault, and the plaintiff 60% contributorily negligent.

[27] In that case, the trial judge’s error appears to have been in holding that the plaintiff continued to enjoy the statutory right of way when his failure to have a lighted headlight made it more difficult for the defendant to see her approaching. In the words of Lambert J.A., the absence of a headlight on the plaintiff’s vehicle: “made the dominant position much less significant a factor than it would otherwise have been”.

[28] The same reasoning may be said to apply in this case. However, the significant difference between the two cases is that in the circumstances of the case at bar the trial judge specifically found that the defendant should have seen the plaintiff before he pulled out in front of him, and the plaintiff was there to be seen. I interpret these findings to mean that although the absence of a headlight on the bicycle was a negligent act on the plaintiff’s part, it had relatively little to do with the defendant’s failure to see the plaintiff given the well-lit nature of the intersection. According to the judge’s findings, even without a headlight the defendant should have seen the plaintiff and should have yielded the right of way to him. Thus, while the absence of a headlight on the plaintiff’s bicycle may have diminished the importance of his statutory right of way it cannot be said to have displaced it to the extent that is seen in Chesley.

[29] In my respectful view, the trial judge’s apportionment of fault, on her findings of fact, was plainly unreasonable and a palpable and overriding error.

[30] I would allow the appeal and vary the apportionment of liability by holding both the plaintiff and the defendant equally at fault for the accident.

More on ICBC Injury Claims and Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

Ok, second post of the day on this topic.
Typically ICBC (on behalf of their insured defendant) are able to send a Plaintiff to an Independent Medical Exam in the course of a BC Supreme Court lawsuit in order to level the playing field. In certain cases they are entitled to more than one exam.
Reasons for judgement were released today (Norsworthy v. Greene) dismissing a defence applicaiton for a second examination in an ICBC Injury Claim.
In this case the Plaintiff obtained several medico-legal reports including the report of a physical medicine specialist and a Functional Capacity Evaluation. ICBC had the Plaintiff examined by Dr. Schweigel. Dr. Schweigel provided the opinion that the Plaintiff had soft tissue injuries and that she “could have been off work for roughly 3 months. After that she should have been able to return to work in a graduated fashion. Within five to six months, she should have been able to return to full time work. This lady is not disabled now from all the activities she was doing prior to the two MVA’s“.
The Plaintiff’s experts disagreed and provided opinion that her injuries were more severe and disabling that opined by Dr. Schweigel. ICBC applied for a second ‘independent’ exam on the basis that they should be entitled to reply to the Functional Capacity Evaluation opinion obtained by the Plaintiff. In rejecting the applicaiton Master Caldwell of the BC Supreme Court gave the following summary of the law regarding requests for multiple Independent Medical Exams:

[22] It should be obvious to any reader of these two reports that each was prepared by two persons with two completely different disciplines and approaches; yet there was a noticeable crossover in some of the observations made by each of them.

[23] In Christopherson v. Krahn, 2002 BCSC 1356, Madam Justice Smith made the observations at para. 9 that the test of reasonable equality does not mean that for each specialist relied upon by the plaintiff, the defendant is entitled to an IME from a similar specialist. Smith J. went on to deal with this proposition when she quoted from Henry v. Derbyshire, [1997] B.C.J. No. 1750, a decision of Master Nitikman where, at para. 13, the master stated:

A third applicable principle is that the party seeking the examination is not limited to one independent examination but

The court will not order a second examination merely to permit the defendant to get a second opinion on the same matter. [She went on to say] A second examination may be appropriate where there is some question which could not have been dealt with on the first examination. The applicant must show a reason why it is necessary for the second examination.

[24] I take the view that in the case at bar the defendants are seeking a second examination pursuant to Rule 30(2).

[25] The IME sought by Dr. Schweigel was conducted after the defendants had knowledge of the earlier functional capacity evaluation of the plaintiff by an occupational therapist retained by the plaintiff, yet the defendants chose to have an IME conducted by an orthopedic surgeon. That opinion seems to be firm. Now the defendants seek an opinion of an occupational therapist which may undermine the opinion of Dr. Schweigel, their own expert.

[26] Respectfully, in my view, although the defendants point to the different purposes of the reports, I do not believe that those differences alone provide a valid reason for a second report pursuant to Rule 30(2).

[27] Accordingly, I dismiss the defendants’ application and award the plaintiff her costs for preparation for and attendance at the hearing of this matter.

ICBC Injury Claims and Late Independent Medical Exams

Written by admin on February 17, 2009. Posted in Civil Procedure, independent medical exams, Uncategorized.

When advancing an Injury Claim in the BC Supreme Court the Defendant’s are entitled to send the injured plaintiff to an independent medical exam or exams in order to ‘level the playing field’.
If a litigant wishes to rely on expert evidence addressing injuries Rule 40A of the BC Supreme Court Rules sets out the timelines for disclosure of such evidence to the opposing side. Sometimes, ICBC defence lawyers apply for multiple independent medical exams and sometimes these applications are brought late into the pre-trial process such that any report generated will not comply with the timelines of Rule 40A.
Reasons for judgement were released today (Critchley v. McDiarmid) by Mr. Justice Burnyeat of the BC Supreme Court clarifying the law as it relates to late applications for independent medical exams. In today’s case the court ordered that the Plaintiff see a psychiatrist even though the scheduled appointment was to take place outside of the timelines required by Rule 40A. In reaching this decision the court summarized the relevant legal principles as follows:

[16] In Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (B.C.C.A.) Finch, J.A., as he then was, stated on behalf of the Court that the purpose of Rule 30 was:

This Court has repeatedly said that the purpose of Rule 30 is to put the parties on an equal footing with respect to medical evidence. What steps are necessary to achieve that end is a matter of discretion for the chambers judge to assess in the circumstances of each case.

[17] Subsequent decisions have established the following general principles: (a) the timing of the request for the independent medical examination is a relevant consideration in that a late request by a defendant may create a prejudice to the plaintiff by placing the plaintiff in a situation where he or she is either unable to respond to the proposed examination or is forced to seek an adjournment of the trial; (b) an inability to respond to a proposed examination constitutes prejudice to a plaintiff; (c) and an adjournment of a trial constitutes prejudice to a plaintiff.

[18] I am of the view that the exercise that was before the Learned Master was as set out by Master Groves, as he then was, in Mackichan v. June and Takeshi, [2004] B.C.J. (Q.L.) No. 2296 (B.C.S.C.):

The argument for a late medical examination is really a complication, or better put, an extension of the Stainer v. Plaza reasoning in that, I believe, the court must consider fairness between the parties and a balancing of prejudice when a request for a late medical examination is made. It is not simply a question of putting the parties on a level playing field at this stage, it is a question of really balancing the prejudice which will result to the defendants in not having a report and the prejudice that will result to the plaintiff in having a report prepared late which would no doubt, I accept, cause an adjournment of the trial.

(at para. 11)

[19] While I am satisfied that the question of whether an independent medical examination raises a question vital to the final issue including the quantum of damages so that it is appropriate that there be a re-hearing of the matters which were before the Learned Master, the submission made on behalf of Mr. Critchley was that this was a purely interlocutory matter and that the Court on a review would have to find that the Learned Master was clearly wrong.

[20] On the assumption that the appeal must be heard on that basis, I have come to the conclusion that the Learned Master was clearly wrong in reaching his decision. First, I cannot be satisfied that the Learned Master considered whether or not the proposed independent medical examination was required to put the Defendant on equal footing with the Plaintiff. Nowhere in his Reasons does the Learned Master make this finding or give full consideration to this question.

[21] The Learned Master also fell into error by requiring the Plaintiff to establish with near certainty that the Trial would be adjourned. By using the phrases “would be adjourned”, “why an adjournment would be inevitable”, “it is not automatic that the trial will be adjourned”, and “I have no evidence to conclude that there would be an adjournment ….”, the Learned Master was in error. The Learned Master pointed out in his Reasons that which is obvious – the question of whether an opinion produced after an independent medical examination will result in an application for an adjournment can only be answered after an expert opinion is tendered under Rule 40A of the Rules of Court. Here, it may well be that there is no need for the Plaintiff to arrange for an expert opinion to counter what might appear in the expert opinion flowing from the independent medical examination requested. Accordingly, it is never correct to require a party to show that an adjournment would be “inevitable”.

[22] The nature of the findings in an opinion after an independent medical examination, the timing of the receipt of it, and the proximity of the likely receipt of it in relation to the date set for the Trial are factors which must be taken into account but whether or not an adjournment will be inevitable is not a factor which need be shown. The question of whether an adjournment may be required is merely one of the factors which should be considered. However, it is not the sole factor to be considered on the question of whether the independent medical examination should be ordered.

[23] I am also satisfied that the Learned Master erred by taking into account an earlier examination date which Mr. Critchley was not able to attend and by concluding that, had this earlier examination taken place, there would have been no prejudice to the Plaintiff. I am satisfied that the Learned Master should only have given consideration to the proposed date of the examination and not an earlier date.

[24] In the circumstances, I can conclude that the Learned Master was clearly wrong and that the Order made should be set aside.

Rule 68, ICBC Injury Claims and Proportionality

Written by admin on February 17, 2009. Posted in Civil Procedure.

As readers of this blog know Rule 68 is a relatively new BC Supreme Court Rule designed to bring faster and more cost efficient access to court for claims valued under $100,000. This rule applies tomany types of personal injury cases including ICBC Injury Claims brought in the BC Supreme Court valued under $100,000.
To save time and expense the rule has brought in certain restrictions with how cases are handled under the principle of ‘proprtionality’. In other words, the cost and time involved in bringing a lawsuit should be proportionate to the amount at issue.
In achieving the end of ‘proportional’ justice Rule 68 brought in certain restrictions including limits on the number of expert witnesses each side can use and restricting the ability of the parties to have pre-trial examinations for discovery.
Today reasons for judgement were released by the BC Supreme Court (Geisbrecht v. Shepherd) dismissing a defence application seeking a second independent medical exam and an examination for discovery. In dismissing the application the court discussed the principle of proportionality. The judgement was short and succinct and I reproduce it in its entirety below:

[1] THE COURT: The provisions of Rule 68, of course, are relatively new. While the principle of proportionality is not of itself new, it is a recent addition to the Rules as a specific factor to be considered. Rule 68 derives from the concern of the profession and of the court that the high cost of litigation of relatively modest claims is something to be addressed and if possible corrected.

[2] The circumstances here seem to me to be classic. The plaintiff’s claim is for damages arising out of a soft tissue injury that she sustained in November of 2006. The defendant admits liability. Rule 68 effectively limits the pre-trial process available in order to move the matter forward on the merits in a balanced and fair way as between the parties.

[3] Here there have been both a medical examination by a physiatrist engaged by the plaintiff as well as an independent medical examination by a physiatrist engaged by the defendant. As I understand it, the defendant’s physiatrist found that the plaintiff sustained a soft tissue injury that should resolve, as most of them do, within 6 to 12 months, that 20 percent of those who sustain soft tissue injuries have symptoms that continue beyond that time.

[4] The plaintiff says that she is within that 20 percent and that there is nothing new that was not available to be seen on the first medical examination that is believed or suspected to have come into existence since then.

[5] Having said that, were it not for the underlying purpose of Rule 68 I would still be uncertain as to whether a second independent medical examination should be allowed. However, taking into account the purpose of Rule 68, the principle of proportionality and the mischief of long and extensive small trials which is to be addressed, I decline to order a second independent medical examination of the plaintiff.

[6] I point out that the trial of the matter is set for March of this year and disclosure has been made of the plaintiff’s witnesses, including a will-say statement concerning what those witnesses may be expected to say.

[7] With regard to the defendant’s application for an examination for discovery of the plaintiff, I am once again not without some doubt, but it seems to me that to give effect to the defendant’s application in the circumstances which exist here would be to re-introduce into the practice under Rule 68 the old practice which it seems to me Rule 68 both endeavours to discourage and also provide an alternative to.

[8] In the result, the defendant’s applications are dismissed. Costs will be in the cause.

$40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

Written by admin on February 10, 2009. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 49 Comments on $40,000 Pain and Suffering Awarded in ICBC Injury Claim Involivng Soft Tissue Injuries

I am in trial this week and am a little short on time so this ICBC Injury Law update will be a little light on my desired level of analysis.
Reasons for judgement were released today (Lai v. Wang) compensating a Plaintiff for injuries sustained in a 2004 motor vehicle collision in Vancouver, BC.
In this ICBC Claim the Court found that the Plaintiff sustained various soft tissue injuries which plateaued after several months leaving the Plaintiff with occasional pain. The Court’s key findings and assessment of damages can be found at paragraphs 34-38 which I reproduce for your convenience:

[34] I am of the view that the plaintiff has suffered significant, but not disabling, pain, which should largely be compensated in damages for loss of enjoyment of life. I expect it will continue for some time into the future on an annoying, but not disabling basis, but that he will likely recover as Dr. Fenton suggests. The cases which seem to me to offer the best guidance are Hubbard v. Saunders, 2008 BCSC 486, and Jackson v. Gow, 2001 BCSC 54. I am of the view that $40,000 is an appropriate amount for these damages. I should add that there was some evidence of pre-accident complaints of pain requiring treatment. I do not think it was demonstrated that any of those problems were aggravated in a sense that required them to be taken into account.

[35] I do not accept the mathematics offered by the plaintiff for past income loss. I accept that the plaintiff may have lost some work due to pain while he worked at the Face Shop, but do not accept that he was disabled in relation to the jobs he chose to do. I estimate the actual interference with work he was available for and willing to do at $1000.

[36] With respect to loss of future earning capacity, I accept that the injuries the plaintiff suffered may affect his income earning capacity on the basis outlined in Palmer v. Goodall, [1991] 53 B.C.L.R. (2d) 44 (C.A.):

…Because it is impairment that is being redressed, even a plaintiff who is apparently going to be able to earn as much as he could have earned if not injured or who, with retraining, on the balance of probabilities will be able to do so, is entitled to some compensation for the impairment. He is entitled to it because for the rest of his life some occupations will be closed to him and it is impossible to say that over his working life the impairment will not harm his income ability.

[37] Mr. Lai is not disabled from the kind of work he has chosen in the past to do, and the kind of work he expects to qualify for in the future. He does, nevertheless, have a level of pain that Dr. Condon considers chronic and Dr. Fenton believes will ultimately resolve, particularly if the plaintiff works through the pain in the short term. I think it likely that the plaintiff will ultimately reach a point where he is only occasionally troubled by pain. When that may be is unknowable. In the meantime, although the plaintiff is unlikely, in any event, to work in fields imposing significant physical demands, he will suffer a loss of capacity to do such work, for which he is entitled to some compensation. I fix those damages at $25,000.

[38] The plaintiff is entitled to special claimed damages for sums expended to date, which I gather are agreed at $5193. I do not think the plaintiff can be faulted for the amounts spent in trying to obtain relief from the consequences of the accident to the date of trial. I am not satisfied that the $1200 for the Taiwan airplane ticket is justified and deny that claim. I accept that the plaintiff will require occasional prescriptions and therapy in the future, although such an award should be modest. I allow $1000 for this. I reject, as speculative, the pulse therapy suggested by Dr. Condon.

Intersections, Left Hand Turns and ICBC Injury Claims

Written by admin on February 5, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on Intersections, Left Hand Turns and ICBC Injury Claims

(Note: The case discussed in this post was overturned by the BC Court of Appeal om May 3, 2010 with a 75% / 25% split of liability. You can click here to read the BC Court of Appeal’s judgement)
One of the toughest types of ICBC injury cases to predict the outcome of are those involving the issue of fault when 2 vehicles collide in an intersection. Even some of the most seasoned ICBC Injury Claims Lawyers can’t predict the outcome of a case where a left hand turning driver on an amber light is stuck by a through driver. There are plenty of cases dealing with such crashes and the results vary from finding the left turning vehicle 100% at fault to those finding the through driver 100% and every imaginable split in between.
Reasons for judgement were released today dealing with an intersection crash finding a left hand turning vehicle 100% responsible for an intersection crash. In today’s case (Salaam v. Abramovic) the Plaintiff was turning left at the intersection of Scott Road and 120th Street in Surrey, BC. This intersection is controlled by a stop sign. As the Plaintiff was turning left her vehicle was struck by the Defendant’s. Madam Justice Gropper made the following analysis in finding the Plaintiff 100% at fault:

[40] The essence of the plaintiff’s position is that the defendant should have foreseen what the plaintiff would do: he knew that the plaintiff intended to make a left hand turn, crossing the northbound traffic and entering the southbound lane to Scott Rd.; he knew that her attention was to her right for approaching southbound traffic. He should have known that the plaintiff was moving slowly across the northbound lanes and would continue to do so despite the presence of the defendant’s vehicle. She argues that the defendant had no reason to assume that she was aware of the defendant’s approach.

[41] The plaintiff relies on the provisions of s. 175(1) of the Act. She says that once she entered the intersection, the defendant’s vehicle had not nor was it approaching so closely that it constituted an immediate hazard. Essentially, when she entered the intersection it was safe to do so and the defendant ought to have yielded the right of way to her.

[42] The plaintiff was the left turning vehicle. It was her obligation, in accordance with s. 174 of the Act, to yield the right of way to the traffic approaching from the opposite direction. The plaintiff did not turn her head to observe whether traffic was approaching. Nor did the plaintiff comply with the provisions of s. 175 of the Act. She did not stop before entering the intersection. The plaintiff did not do anything to ascertain whether there was traffic on the through highway, or whether it was close. She did not proceed with caution, despite driving slowly.

[43] The unassailable fact is that the defendant was there to be seen from 450 feet away from the plaintiff before she entered the intersection.

[44] The plaintiff argues that the defendant had no reason to assume that she was aware of his approach. Putting aside for the moment that was her duty to determine whether there was traffic approaching on the through highway, he was entitled to assume that she did know he was approaching, by hearing him, or to expect that she would actually turn her head to observe approaching traffic.

[45] I agree with the analysis in Pacheco that it was the plaintiff’s obligation, as she wished to make a left turn at the intersection, not to proceed until she could do so safely. The plaintiff did not determine whether her turn could be done safely.

[46] The authorities upon which the plaintiff relies, as well as the provisions of the Act, require, at the very least that all drivers keep a proper lookout.

[47] The dispute between the experts devolves to when the defendant’s approach constituted an immediate hazard to the plaintiff. The defendant’s expert, Mr. Lawrence, describes the defendant becoming an immediate hazard to the plaintiff when she enters the left lane of the northbound traffic. The plaintiff’s expert, Mr. Brown, considers that the plaintiff’s vehicle was an immediate hazard to the defendant when she entered the intersection.

[48] Mr. Brown’s analysis ignores the provisions of ss. 174 and 175 of the Act, which require the left turning vehicle to first stop, and then yield the right of way to traffic approaching so closely that it constitutes an immediate hazard, and then proceed with caution. The plaintiff did none of those things, she did not stop at the stop sign, she did not ascertain whether there was any through traffic, whether such traffic constituted an immediate hazard or not, nor did she proceed with caution. Mr. Brown’s analysis requires the defendant to anticipate that the plaintiff was not following the rules of the road.

[49] Mr. Lawrence considers that the immediate hazard arose when the plaintiff entered the left lane of the northbound traffic. I agree. The plaintiff was driving very slowly and could stop almost immediately. It was reasonable for the defendant to assume that she was aware of his presence and that she would not move into his path. She did. When the defendant honked, the plaintiff stopped. It was the plaintiff’s presence in the defendant’s lane of travel which caused the accident.

[50] The plaintiff did not ascertain whether the defendant was an immediate hazard when she entered the intersection. In all the circumstances, I find that the plaintiff is 100% liable for the collision which occurred.

[51] Therefore, the plaintiff’s claim is dismissed. The defendant shall have his costs.

Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

Written by admin on February 3, 2009. Posted in ICBC Liability (fault) Cases, Uncategorized. 39 Comments on Can Jaywalkers Injured by a Vehicle Seek Pain and Suffering in an ICBC Claim?

If you are jaywalking and are injured in a BC Car Accident, can you make a claim for pain and suffering? The answer is it depends on the circumstances.
Reasons for judgment were released today by the BC Supreme Court illustrating the principle that simply because someone is in breach of the law at the time of a car crash they can still succeed in advancing a negligence claim (a claim for pain and suffering and other damages against another party).
In today’s case (Lemesurier v. McConnachie) the Plaintiff was injured when she was struck by a vehicle as she was crossing Victoria Street in Trail, BC. At the time she was jaywalking. For this she was found at fault for the collision. However, the court also found that the motorist that struck the Plaintiff at fault concluding that the motorist was not driving with appropriate caution at the time of the collision. The court made the following analyisis in finding the jaywalker 60% at fault for the crash and the motorist 40% at fault:

[21] Where, however, there are circumstances known to a motor vehicle operator, that render questionable the presumption that the rules of the road will be respected by pedestrians, the exercise of due care is not met by behaving in accordance with the presumption. One cannot be deemed to presume facts at odds with known circumstances. “Due care” on the night of this accident included the known, and (by the plaintiff), specifically observed circumstance that there were pedestrians about and, that given the nature of the event, they might not be taking all due care for their own safety. This required an extra degree of caution in the circumstances. The plaintiff acknowledged this herself in turning into the centre lane to avoid pedestrians.

[22] The question then becomes whether the plaintiff has proved that the plaintiff’s want of due care, applying s. 181, contributed to the collision. Liston v. Streiger, CA 18770, CA19363 Vancouver Registry (June 25, 1996) is a case in which the Court of Appeal apportioned negligence 60-40 against a pedestrian who was struck in Penticton during the “Peach Festival” in a somewhat comparable atmosphere, in that the exercise of due care included adjusting ones’ driving habits to accommodate the possibility of careless behaviour by pedestrians. There the facts, as found by the trial judge and accepted by the Court of Appeal, included the plaintiff “running barefoot across a busy street at night, in a poorly lit area in a state of intoxication… she glanced into the curb lane and proceeded to run into it … .”

[23] The defendant’s position is that apart from any discussion of legal presumptions and duties, the effect of the evidence is that the plaintiff simply ran into the defendant’s car in circumstances where the defendant had no opportunity to avoid striking her. The widths of the lanes established in evidence suggest that the distance from the curb to the point of impact is not great and could be traversed in a matter of seconds by a person who was running. The defence submits that the plaintiff’s evidence that she simply did not see the defendant until she was upon her may be attributed to the probability that the plaintiff was running.

[24] The useful evidence is, again, that of the defence witness Ms. Howes. Apart from establishing that the collision occurred while the traffic signals were against the plaintiff, and that the plaintiff was not in the crosswalk, Ms. Howes’ evidence is that she saw a large group of people crossing the road from her vantage in the intersection. Some were running. Her evidence is that the plaintiff was among the last of that group attempting to cross. Ms. Howes saw shadows crossing the road and had enough time to form the impression that someone was going to be hit because approaching cars were not slowing down.

[25] I accept that Ms. Howes probably saw the plaintiff running. It may well be, as the defence assets that she ran right in front of the car leaving the defendant very little time to react to her specific presence. This does not, however, explain how the defendant could approach the intersection without slowing or without the utmost caution given that a large group of people had proceeded to cross moments before contrary to the traffic signal. The effect of Ms. Howes’ evidence, which I accept, is that the presence of people on the road was manifest, and that the defendant should have been alert to that fact. She should not, in view of the circumstances, have been “surprised” by pedestrians behaving as the plaintiff did.

[26] I am of the view that the plaintiff should bear the larger portion of the responsibility for what happened to her. With respect to the division of liability, I find it difficult to distinguish the relative degrees of responsibility here from those established in Liston (supra). Accordingly, I divide responsibility for what occurred 60% to the plaintiff and 40% to the defendant.

This case goes to show that simply because one party is breaking the law at the time of a BC car crash another party can still be (partially or wholly) responsible. Each case turns on its own circumstances and a breach of a law of one party will not excuse careless driving by another when it comes to the law of negligence (the law that governs ICBC claims for pain and suffering).