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Tag: icbc injury claims

BC Injury Claims and Production of Pre Accident Medical Records

Further to my previous post discussing this topic reasons for judgement were released today dealing with the extent of pre-accident record disclosure ICBC (or other defendants) are entitled to when a Plaintiff sues for damages for personal injuries in the BC Supreme Court.
In today’s case (Moukhine v. Collins) the Plaintiff was involved in a 2007 BC car crash.  The Plaintiff sued for damages.  In the Statement of Defence the lawyer plead that the injuries are not the result of an accident, but are were in fact pre-existing conditions.  (This is a rather ‘boilerplate’ pleading raised by the defence in almost every ICBC injury claim).  The defence lawyer then asked that the Plaintiff provide medical records which pre-date the accident by as much as 15 years.
The Court was asked to decide  “whether a mere allegation in a pleading that a plaintiff’s injuries are not the result of an accident, but are caused by his or her pre-accident health condition is enough, without more, to entitle a defendant to production of pre-accident medical records“.
Mr. Justice Harris went on to hold that in personal injury cases, the mere allegation by the Defence lawyer of a pre-existing condition may be enough to compel the disclosure of pre-accident records.  Specifically the Court reasoned as follows:

[18] In my opinion, nothing in Dufault is authority for the proposition that pleadings alone are insufficient to make an order under Rule 26(11) or that evidence is always necessary. Similarly, Dhaliwal does not address the relevance of pleadings as a basis for making a Rule 26(11) order. There is no reference in the judgment  to the issues pleaded in the action and whether pleadings  would have affected the outcome. The case deals only with the sufficiency of the evidence that was before the court. I do not draw from the case the proposition that pleadings standing alone and defining the issues in the action are never a sufficient basis to satisfy the court to make a Rule 26(11) order.

[19] In Marsh v. Parker, 2000 BCSC 1605 at para. 9, Master Horn concluded that Dhaliwal stood for the proposition that “there must be something either by way of evidence or by way of the pleadings which raises the plaintiff’s pre-injury state of health as an issue.”  I agree. Indeed, in Creed v. Dorio, [1998] B.C.J. No. 2479, Mr. Justice Edwards, at paragraph 13, rejected the proposition that “some evidence”  was necessary to establish relevance….

[22] In an appropriate case pleadings  are a sufficient basis on which to exercise a discretion to order production of at least some documents. In some cases it is reasonably obvious that records  may contain relevant (in the sense that term is used in Peruvian Guano) information and should be produced, subject to production following a Jones orHalliday format. Evidence may be required in order to resist a production order. That does not mean, however, that an order will always go on the basis of pleadings alone and it may be premature in some circumstances  to make such an order before discovery (see, for example, Mehdipour v. Shingler (18 March 2009), Vancouver M080517 (S.C.)). Merely pleading pre-existing conditions does not deprive the court of its discretion to refuse to make the order sought when, for example, there is no air of reality about the alleged connection between the documents sought and the issues in the action. Evidence may therefore, on occasion,  be required to establish the relevant connection to overcome the conclusion that the documents are  irrelevant to the claim.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

BC Injury Claims for Passengers Injured in Single Vehicle Collisions – When Your Driver is At Fault

Here is video I recently uploaded to YouTube discussing injury claims (tort claims) brought by passengers when the driver of their vehicle is at fault for a single vehicle collision in British Columbia.
I have previously written about this topic and you can click here to read my archived posts discussing single vehicle collisions and the inevitable accident defence.
I hope this information is of assistance.

British Columbia Injury Claims and Collisions With Animals

When the driver of a vehicle strikes an animal in the roadway and injures their passengers they can only successfully sue for damages (a tort claim) if it can be demonstrated that the driver did something careless.  Sometimes collisions with animals are unavoidable even with the most careful driving and in these cases injury lawsuits against drivers get dismissed.  Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, dealing with this area of law.
In today’s case (Freidooni v. Freidooni) the Plaintiff was injured when the vehicle she was occupying struck a deer.  The Plaintiff was sitting in the passenger seat.  Her husband was driving.  They were travelling in the left of two westbound lanes on a highway.  The speed limit was 110 kmph but the defendant was driving, in cruise control, at 130 kmph.   To the right of the highway was an ‘open field with no trees or shrubs that would preclude an individual from seeing animals next to the travelled protiomn of (the) Highway“,   There was vegetation to the left of the highway that “could have impeded the defendant’s view of deer in that areal“.
There were no vehicles which limited the driver’s view.  A deer entered the Defendant’s lane of travel and the collision occurred.  Neither he nor the Plaintiff saw the deer before impact.  The Defendant said he was not at fault in these circumstances arguing that “it cannot be determined with any certainty as to whether the deer entered the westbound lanes of Highway No. 16 from the open area to the north, that being the open field to the defendant’s right, or whether it emerged from the vegetation to the defendant’s left“.
Mr. Justice Shabbits disagreed with the Defendant and found him entirely at fault.  In coming to this conclusion he noted as follows:

[23] The defendant submits that it has not been shown that the deer did not emerge from cover in the median of the roadway, and that since neither the plaintiff nor the defendant saw the deer before the collision, it cannot be inferred that the defendant could have seen the deer in sufficient time to avoid the impact.

[24] The evidence, however, is unequivocal in that the deer approached the defendant’s vehicle from its right.  Even if it had initially emerged from the median of the roadway, it must have crossed entirely over the lane in which the defendant was driving before turning and re-entering the defendant’s lane of travel.  Alternatively, the deer emerged from the open field to the right of the highway.  I am of the opinion that in either case, the defendant’s failure to see the deer was negligent.  The only explanation as to why he did not see the deer is that he was not paying attention to the roadway.  The defendant was on cruise control on a wide roadway in perfect conditions with no other traffic about.  By his own account, he was drinking coffee and listening to music.  In my opinion, the reason why he did not see the deer on the roadway was that he was not paying attention.  He was not paying attention because he did not expect anything to be there.

[25] The accident occurred in an area where there is wildlife.  The defendant knew that.

[26] In White v. Webster, Esson J.A. says that the question comes down to this.  He says it was a virtually unavoidable inference that there was some absence of look out on the part of the driver.  I am of the same opinion in this case.  The defendant was not paying attention.  He did not see the deer when he should have seen it.  He took no evasive action to avoid the impact when he should have been able to do that.

[27] I find that the defendant was negligent.  He is liable for the accident.

When the driver of a vehicle injures passengers by colliding with an animal in British Columbia the passengers should be cautious before giving a statement to the driver’s insurance company addressing the issue of fault.   As I’ve previously written, if any issues of carelessness are glossed over in the statement it will certainly be used against you if you later seek to advance a tort claim for compensation for your injuries.

More on ICBC Claims and the Timing of Formal Settlement Offers

One principle that is becoming well defined with respect to Rule 37B is that settlement offers made on the eve of trial may not trigger any costs consequences.  Reasons for judgement were released today demonstrating this.
In today’s case (Parwani v. Sekhon) the Plaintiff was injured in a 2004 BC car crash.  The Plaintiff sued for damages.  As trial approached the Plaintiff offered to settle his case for $37,000 plus costs and disbursements.  On the last business day before trial the Defendants responded with a formal settlement offer under Rule 37B for $10,000 plus 50% of disbursements.
The claim went to trial and the Plaintiff claimed damages of $270,000.  The claim was largely unsuccessful with the Plaintiff being found 75% at fault.  Damages were assessed at $25,000 leaving an award of $6,250 for the Plaintiff (25% of $25,000).
The Parties could not agree on costs consequences.  The Defendants argued that since they beat their formal offer they should be awarded the costs of trial.  Madam Justice Ross disagreed with this submission finding that while the Defendants offer should have been accepted it was simply made too late.  In declining to award the Defendants any costs the Court reasoned as follows:

[18] The defendants submit that the offer to settle was one that ought reasonably to have been accepted given the evidence with respect to the liability issue. In addition, the position taken by the plaintiff at trial with respect to his losses was unreasonable given the medical evidence and the paucity of evidence to support the claims. The offer exceeded the plaintiff’s recovery at trial. The position of the plaintiff was that he did not have adequate time to consider the offer, coming as it did on the eve of trial. Moreover, had the plaintiff accepted the offer, considering the disbursements already incurred, the plaintiff would have recovered only $765.34. Accordingly, it was not reasonable to accept the offer. The plaintiff had made an early offer to settle that reflected a considerable discount to reflect the uncertainties in the case.

[19] In my view, while the defendants’ offer was reasonable, it was not early. It came on the eve of trial, after substantial costs and disbursements had been incurred. Such an offer is not the embodiment of the conduct the rule intends to promote. In the circumstances, and considering the factors identified in the rule, I am not prepared to consider the offer in relation to the award of costs.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

You can click here to read access my archived posts discussing Rule 37B in injury lawsuits.

More on Rule 37B; Settlement Offers, Acceptance and the Discretion of the Court

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing whether the BC Supreme Court has discretion to make costs awards after a formal settlement offer is accepted that specifically addresses costs consequences.
In today’s case (Hambrook v. Sandhu) the Plaintiff was injured in a 2004 BC collision.  He sued for damages.  The defence lawyer (instructed by ICBC) made a formal offer to settle the case for $75,000 plus costs up to the time that the offer was made with the Defendant being entitled to costs thereafter.  (this offer was made under the old Rule 37 which has now been repealed).
The Plaintiff initially dismissed the offer and continued in the lawsuit.   Three days before trial the Plaintiff accepted the offer.  The parties could not agree on the costs consequences.  The Plaintiff argued that Rule 37B (the rule that governed at the time of acceptance) gave the Court discretion to award her costs up to the date the offer was accepted.   Mr. Justice Verhoeven disagreed and held that when a settlement offer is accepted that specifically spells out the costs consequences there is no discretion for the Court to exercise under Rule 37B.  The Court provided the following reasons:
[28] But it has also been held that a settlement agreement containing terms as to payment of costs leaves the court with no room for the exercise of discretion pursuant to Rule 37B:  Buttar v. Di Spirito, 2009 BCSC 72 at para. 17..

[30] Madam Justice Gerow held that the court had no discretion to award costs in the matter before her. She stated at para. 11:

[11]      Both parties advanced arguments that the court has discretion under Rule 37B to make an order regarding costs. However, it is my opinion that the court has no discretion to make an order regarding costs in this matter. Mr. Buttar accepted the offer put forth by the defendants, including the offer regarding costs, without reservation. It is my view that Rule 37B does not confer a discretion on the court to set aside an agreement that has been entered into between the parties regarding costs.

[31] On this basis, where a party has specified the costs consequences of acceptance of its offer to settle, within an offer to settle to which Rule 37B applies, and a settlement agreement results in accordance with the offer, the court does not retain a discretion to depart from the terms of the agreement.

[32] Put another way, it remains open to litigating parties to make an offer to settle within the meaning of Rule 37B and to specify the costs consequences of acceptance of the offer. In my view this is a positive result. It allows the parties to create their own bargain. It provides for certainty, and avoids the need for applications to court where a settlement agreement is reached, while preserving the court’s discretion in cases where no settlement occurs…

[37] In my view the agreement that the parties made was unambiguous. The defendants’ offer was clear in relation to the costs consequence of acceptance; the defendants would pay the costs until the date of the offer, and if the plaintiff were to accept the offer after that date, then the defendants would be entitled to costs after that date.

[38] After July 1, 2008, when the new rule came into effect, the defendants’ offer remained open for acceptance in accordance with its terms. The defendants had not withdrawn it or amended it. The new rule affected the costs consequences in the event that the offer was not accepted, and the court went on to render a judgment. That did not occur…

[61] The plaintiff will receive costs in accordance with Appendix B, Scale B, for the time leading to delivery of the defendants’ offer to settle. The defendants will receive costs following that date. No argument was presented to me that there should be any distinction between the tariff items and disbursements. The applicable costs will include both tariff items and disbursements.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Another Case Holds ICBC Insurance is Relevant Factor Under Rule 37B

Further to my recent post on this topic, another case was just released by the  BC Supreme Court considering whether the Court can consider the fact that the Defendant is insured when determining what costs consequences a formal offer of settlement should have in an ICBC Claim.
In today’s case (Cridge v. Ivancic) the Plaintiff was involved in a 2005 car crash in Surrey, BC.  The Plaintiff sued for damages.  Fault was admitted by the Defendant and the Court was asked to value the claim.
Prior to trial the Defendants (through their ICBC appointed defence lawyer) made a formal offer to settle the case for $50,000.  The Plaintiff did not accept this offer and went to trial.  At trial the Plaintiff sought damages of over $100,000.  The claim was largely unsuccessful with the Court awarding just over $12,000 in total damages.
The Defendants brought a motion seeking that the Plaintiff pay their costs from the point of trial onward.   The Court held that it was not unreasonable for the Plaintiff to reject the formal offer until the week before trial.  As a result the Court awarded the Plaintiff her costs until that stage and the Defendants their costs from that time on.  The result was the costs cancelled each other out.  While there is nothing noteworthy about this result, the decision is worth reviewing because it is yet another precedent discussing whether insurance is a relevant consideration under Rule 37B.  Madam Justice Fenlon held that the existence of insurance is a fair consideration stating as follows:

[14] Under R. 37B(6)(c), another consideration is “the relative financial circumstances of the parties”. The defendants were represented by ICBC. The plaintiff was unrepresented; she is a retired accountant in her 70s, and appears to be of limited means, working only part-time each spring during tax season.

[15] There is conflicting case law on the issue of whether a defendant’s insurance coverage is relevant to the consideration of the financial circumstances of the parties. In Bailey v. Jang, 2008 BCSC 1372 at paras. 32-34, 90 B.C.L.R. (4th) 125 [Bailey], Hinkson J. held that the defendant’s insurance coverage should not be considered because the wording of Rule 37B(6)(c) of the Rules of Court does not invite such consideration and because an insurer is not generally a party to the litigation. Bailey has been followed on this point in various cases, including Abma v. Paul, 2009 BCSC 60 at para. 32, 66 C.P.C. (6th) 100, and A.E. v. D.W.J., 2009 BCSC 505 at para. 58, 91 B.C.L.R. (4th) 372.

[16] However, in Radke at para. 42, Boyd J. held that the fact that the defendants were represented by ICBC and “had substantially greater resources to finance a trial than the individual plaintiff” is a relevant consideration under R. 37B(6)(c). Radke was followed in Smith v. Tedford, 2009 BCSC 905, 77 C.P.C. (6th) 308, where Mr. Justice Grist stated at para. 16 that “[t]he ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule.”

[17] I find Mrs. Cridge’s modest financial means and the defendants’ representation by ICBC to be a relevant consideration, although not a significant or determinative factor in my decision.

As pointed out in my last article on the topic, Rule 37B has been on the books now for almost two years.  The Court is clearly conflicted about whether the availability of insurance is a relevant factor under the rule.  When the New BC Supreme Court Rules come into force on July 1, 2010 Rule 37B will be replaced with Rule 9.  Rule 9 uses language that is almost identical to Rule 37B so the lack of clarity will likely continue.  In light of the on-going conflicting authorities it will be useful if the BC Court of Appeal addresses this issue.

Uncontrolled Intersection Crashes, Who's At Fault?

When two vehicles enter an uncontrolled intersection at approximately the same time and a collision occurs, how do you determine who’s at fault?  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of the law.
In today’s case (Vagramov v. Zipursky) the Plaintiff was involved in a 2004 car crash in Vancouver, BC.  The Plaintiff entered an uncontrolled intersection and collided with the Defendant’s vehicle which was attempting to cross the intersection at the same time.  Mr. Justice Gaul found that the Defendant was 100% responsible for the collision.  In doing so the Court provided the following useful summary of some of the legal principles that come into play in BC uncontrolled intersection crash lawsuits:

[129] The Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA], governs the manner in which automobiles are driven on the roadways of our province. Section 144 of the MVA deals with the issue of careless driving, stating:

(1) A person must not drive a motor vehicle on a highway

(a) without due care and attention,

(b) without reasonable consideration for other persons using the highway, or

(c) at a speed that is excessive relative to the road, traffic, visibility or weather conditions.

[130] Section 173(1) of the MVA sets out the statutory rules of the road for vehicles that approach an uncontrolled intersection of the nature present in the case at bar.  That section provides:

Except as provided in section 175, if 2 vehicles approach or enter an intersection from different highways at approximately the same time and there are no yield signs, the driver of a vehicle must yield the right of way to the vehicle that is on the right of the vehicle that he or she is driving.

[131]     The law relating to the duties of motorists as they approach uncontrolled intersections was set out in the seminal case of Walker v. Brownlee, [1952] 2 D.L.R. 450 (S.C.C.) [Brownlee].  The following observations of  Mr. Justice Cartwright, at 461, are apposite to the case at bar:

While the decision of every motor vehicle collision case must depend on its particular facts, I am of the opinion that when A, the driver in the servient position, proceeds through an intersection in complete disregard of his statutory duty to yield the right-of-way and a collision results, if he seeks to cast any portion of the blame upon B, the driver having the right-of-way, A must establish that after B became aware, or by the exercise of reasonable care should have become aware, of A’s disregard of the law B had in fact sufficient opportunity to avoid the accident of which a reasonably careful and skilful driver would have availed himself; and I do not think that in such circumstances any doubts should be resolved in favour of A, whose unlawful conduct was fons et origo mali.

[132]     Another oft-cited case in the area of the duty of servient drivers is the Manitoba Court of Appeal decision in Scheving v. Scott (1960), 24 D.L.R. (2d) 354 (Man. C.A.) [Scheving].  In his written reasons for a unanimous court, Mr. Justice Schultz articulates the appropriate principles to follow in cases such as the one presently before the court, at 358-359:

I think it fair to infer that this provision [the section of the Manitoba Highway Traffic Act that is similar to s. 175(1) of the BC Motor Vehicle Act] was made for the purpose of controlling automobile traffic, the speed of which makes impractical and ineffective a rule giving priority to whichever vehicle first reaches an open intersection. It need hardly be emphasized that inevitably there is confusion and great danger inherent in races to get to such an intersection, underlining the necessity for the present right-of-way rule. The word “approximately” as used in the above subsection means “about” or “nearly” and is the direct opposite of “exactly” or “precisely”. Therefore a vehicle approaches an intersection “at approximately the same time” as another vehicle if it approaches slightly before or slightly after such vehicle. Because the vehicle from the left reaches the intersection first — momentarily or a fraction of a moment ahead of the vehicle from the right– it cannot be said that the vehicle from the right has not approached it at “approximately” the same time.

What may be referred to as the old rule — that the car first reaching the intersection has the right-of-way — may properly be applied under certain circumstances. Thus, When the vehicle on the left reaches an open intersection substantially in advance of the vehicle on the right, i.e., where the vehicle on the right is at such a distance and travelling at such a speed that there is no reasonable danger–no apparent danger–of collision to be apprehended if the driver on the left proceeds into the intersection, then, under such circumstances, the driver on the left can with safety and with reason proceed into the intersection. However, it is obvious that under such circumstances, there being no question of precedence involved, there is no question of right-of-way involved either.

Prior entry into an intersection does not mean priority by a matter of a few feet or by a fraction of a second ahead of another vehicle; it means entry into an intersection with the opportunity of clearing it without obstructing the path of another vehicle under normal circumstances. “Who hit whom” is not the test.  The driver on the left, even though he may reach the intersection first, must yield the right-of-way to the driver on the right where they approach the intersection so nearly at the same time that there would be imminent hazard of collision if both continue the same course at the same speed.

Understanding The 2 Roles of ICBC – "Your" and "Their" Insurer

Here is a brief video I’ve uploaded to YouTube discussing ICBC’s dual role and some information you should know before you place your first call to ICBC after being injured in a BC motor vehicle accident:

As readers of this Blog undoubtedly know, ICBC is a British Columbia monopoly auto insurer which usually plays 2 roles in BC auto injury claims.  When you are injured by another BC motorist who is at fault and you and they are insured with ICBC, ICBC will not only need to process your claim for Part 7 Benefits but also process the tort claim you are making against the at fault motorist.   I hope the information covered in this video is of assistance.

Pedestrian Found Partially At Fault for Injuries for Failing to Use Sidewalk

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with the duty of Pedestrians to use a sidewalk or crosswalk where one is available.
In today’s case (Larsen v. Doe) the pedestrian Plaintiff was struck by a vehicle while “walking in a T intersection normally used by vehicles“.  There was no marked pedestrian walkway where the collision occurred however there was a sidewalk nearby and “if the pedestrian had taken the sidewalk, her path would cross the street within the unmarked crosswalk much closer to the stop sign from which the vehicle departed“.  The collision was a hit and run and the identity of the driver/owner of the vehicle remained unknown at the time of trial.
As permitted by section 24 of the Insurance (Vehicle) Act the Plaintiff sued ICBC directly as a nominal defendant seeking compensation for her injuries.  ICBC, in the place of the unknown motorist, was found liable for the collision.  ICBC argued that the Plaintiff should be found partially at fault for not utilizing the nearby sidewalk.  Mr. Justice Josephson agreed with this submission.  In finding the plaintiff 25% at fault for the collision Mr. Justice Josephson provided the following analysis:

[12]         The plaintiff argues that, as she was walking along the highway, she had either entered the intersection or was approaching so closely that she constituted an immediate hazard to the defendant driver. Consequently, the defendant was obligated to yield the right of way to the plaintiff and, had she done so, could have proceeded after the plaintiff cleared the intersection.

[13]         While ss. 175 and 119, taken together, give through traffic the right of way, s. 175 does not grant to pedestrians travelling along a highway the right to proceed on the roadway itself where a sidewalk or a crosswalk is available. No authorities have found otherwise.

[14]         Furthermore, the plaintiff’s submission that s. 175 grants pedestrians the right of way in travelling along a roadway runs contrary to s. 182(1) of the MVA which provides that, where there is a sidewalk, a pedestrian should avail herself of it.

[15] Therefore, I find that the plaintiff was in breach of her statutory duties under s. 180 and/or s. 182(1) of the MVA and cannot invoke s. 175 in such a way as to override those duties…

[25]         In the case at bar, I find that the plaintiff’s breach of her statutory duties under the MVA did contribute to the accident and, consequently, the injuries she sustained. Because she chose to walk along the roadway behind the diagonal parking stalls, the plaintiff made herself less visible to the defendant than had she chosen to cross the intersection within the unmarked crosswalk according to her duties under the MVA. While the plaintiff believed the defendant driver saw her and was waiting for her to cross the intersection, she should have reasonably perceived the danger the defendant’s car presented given the minimal lighting in the intersection and given that a driver would not expect pedestrians to emerge into the intersection from the other side of the parking stalls when there was a sidewalk and crosswalk available to her.

[26]          I conclude that liability should be apportioned 75% to the driver and 25% to the plaintiff.

This case is also worth reviewing for the Court’s discussion of a Plaintiff’s duties to ascertain the identify of the Driver in Hit and Run Claims.  In order to successfully sue ICBC under s. 24 of the Insurance Vehicle Act a Plaintiff needs to make “all reasonable efforts…to ascertain the identity of the unknown driver“.  Here ICBC argued that the Plaintiff, despite being hit unexpectedly and having a compound wrist fracture, unreasonably failed to obtain identifying information with respect to the offending vehicle.  The Court disagreed with this submission finding that the Plaintiff was in shock and that her failure to identify the motorist was not unreasonable, specifically the court found as follows:

[36] In determining whether a claimant has made all reasonable efforts, the court must have regard to the subjective condition of the claimant at the time of the accident: see Leggett v. Insurance Corporation of British Columbia (1992), 96 D.L.R. (4th) 123, 72 B.C.L.R. (2d) 201 (C.A.) [Leggett cited to B.C.L.R.] at para. 12. Therefore, where a claimant fails to obtain the identity of the driver or owner at the time of the accident because she was in a state of shock, the claimant will not be held to have acted unreasonably. In order to find that a claimant was in a state of shock, medical evidence is not required; a finding that the claimant was “taken by surprise and confused” is sufficient: see Hocaluk v. Insurance Corp. of British Columbia, 2007 BCSC 170, 69 B.C.L.R. (4th) 360 at para. 56.

[37] Under subsection (b), the phrase “not ascertainable” should not be strictly interpreted to mean “could not possibly have been ascertained” but, rather, whether the identity of the person “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position”: see Leggett at para. 11.

[38] I am satisfied that the plaintiff was in a significantly altered emotional state following the collision that rendered her incapable of rationally assessing her duties and obligations. With the meaning of Leggett, she was not in a condition that it would have been reasonable for her to discover and record the appropriate information.

[39] Once recovered, she employed all reasonable efforts to ascertain the identity of the owner and driver. While not all possible efforts were employed, those that were fall well within the classification of “reasonable”.

More on ICBC Claims and the "Failure to Mitigate" Defence

When advancing an ICBC tort claim Plaintiffs have a duty to take reasonable steps to limit their loss.  If a plaintiff does not do so the value of their claim can be reduced .  This legal defence is known as “failure to mitigate“.  (You can click here to read my previous posts discussing this topic).
In the personal injury context, it is not unusual for defendants to argue that plaintiffs failed to mitigate their damages.  A common argument is that a Plaintiff failed to follow medical advice.
While failing to follow medical advice can result in reduction of the value of a claim, this fact in and of itself is not enough.  To succeed the Defendant will have to prove not only that the Plaintiff failed to follow medical advice but that had the Plaintiff done so it would have improved the course of their injuries.  Reasons for judgement were released today demonstrating this principle.
In today’s case (Singh v. Shergill) the Plaintiff was injured in a 2006 rear-end collision.  Fault was admitted.  The Plaintiff’s injuries included soft tissue damage to his low back.  The Defendant argued that the Plaintiff “did not follow his doctor’s recommendations” and that the Court should reduce the value of the claim for failure to mitigate.  Madam Justice Baker agreed that the Plaintiff “did not follow his doctor’s recommendations” but did not reduce the value of the Plaintiff’s claim.  Specifically the Court held as follows:

[45] The defendant submits that Mr. Singh would have recovered more quickly, and would experience less discomfort and impairment if he had followed Dr. Ng’s recommendation to undergo physiotherapy for a period longer than he did, and to engage in an active program of physical exercise to strengthen his core muscles, in particular, his abdominal muscles.

[46] I agree with the defendant that Mr. Singh did not follow his doctor’s recommendations.  I am not persuaded, however, that the evidence is sufficient to permit me to conclude that Mr. Singh would have recovered more fully, or more quickly, if he had done as Dr. Ng recommended.  Mr. Singh testified that although the five physiotherapy treatments he did have in 2006 resolved the problems in his neck and shoulders, he experienced no relief in relation to the lower back symptoms.

[47] I expect that Dr. Ng was hopeful that the treatment he was recommending would be of benefit to Mr. Singh, but he has not testified that it is probable that Mr. Singh would be in better condition today if he had continued physiotherapy.  Dr. Ng has pointed out, and the evidence establishes, that the job Mr. Singh does five days a week involves considerable physical labour, and therefore Mr. Singh does get physical exercise.

[48] I conclude the defendant has failed to prove a failure to mitigate.

The lesson to be learned is that the Defendant has the burden of proving failure to mitigate in a personal injury lawsuit.

If this defense is raised it needs to be determined what difference would have been made if the Plaintiff did what the Defendant alleges the Plaintiff should have done.  Usually expert opinion evidence would be necessary to discharge this burden and Plaintiffs faced with this defence would be wise to scrutinize the evidence Defendants have in support of their arguments when gauging whether their settlement should be affected for failure to mitigate.