Countless people have been injured in car crashes over the years in British Columbia and had their injury claims denied by ICBC on the basis of the Low Velocity Impact Program.
I have written many times about this program explaining that it has no legal force in BC. Reasons for judgement were released today proving this yet again and in doing so providing one of the better explanations of why a certain threshold of vehicle damage is not necessary in order to have a successful personal injury claim in this Province.
In today’s case (Gignac v. Rozylo) the Plaintiff was involved in a 2004 collision in Victoria, BC . At trial a ‘senior estimator‘ employed by ICBC testified that the Plaintiff’s vehicle suffered “cosmetic damage only to the rear bumper cover. ‘ and that ‘there is no bumper misalignment or sheet metal damage‘.
The Plaintiff was injured but ICBC advanced the LVI defence arguing that “given the very minor nature of the collision it is difficult to conceive how someone could possibly be injured, or injured in the significant fashion the plaintiff claims‘.
Despite finding that the crash was ‘one of the more minimal contacts between motor vehicles in the history of the internal combustion engine‘ Mr. Justice Wilson outright rejected the LVI defence and in doing so provided the following very useful summary of the law:
 I am not persuaded that the third party’s argument is open to me to accept. There are two propositions which lead me to that opinion.
 First, in Gordon v. Palmer , Thackray J. (as he then was) made the following observations:
I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. … It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.
Significant injuries can be caused by the most casual of slips and falls. … The presence and extent of injuries are to be determined on the basis of evidence given in court.
 Second, in Price v. Kostryba,McEachern, C.J.S.C. (as he then was), said at para 4:
Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover.
 Therefore, I conclude that Gordon is authority for the proposition that the magnitude of forces unleashed, in any given contact, is not determinative of the injuries sustained. Accordingly, in this case, there was a “real risk” of the harm now complained of.
 And, Price is authority for the proposition that, objectively, some patients, of “ordinary fortitude” sustain injuries which are permanent. In this case, I am not dealing with the particular vulnerabilities of this particular plaintiff.
 In result, I find the defendant liable for the plaintiff’s injuries. That is to say, the defendant’s carelessness caused, as I will describe below, the plaintiff’s injuries, in fact and in law.
As most frequent visitors to this blog know, Rule 37 of the BC Supreme Court Rules (the rule that dealt with formal settlement offers and costs consequences in BC Supreme Court trials including ICBC personal injury claims) was replaced this summer with Rule 37B. Rule 37B builds in a lot of judicial discretion in the process of awarding ‘costs’ to litigants where a formal offer was made compared to the old Rule 37 which had strict consequences resulting when a formal offer was made and beat at trial.
In what will likely be one of the last BC court cases dealing with the old Rule 37, unanimous reasons for judgment were released today by a 5 member panel of the BC Court of Appeal ruling that the old Rule 37 is not incompatible with the Negligence Act and both can work in harmony.
In this case the Plaintiff sued for injuries sustained as a result of a motor vehicle collision. Pre-Trial the Defendant made a settlement offer under the old Rule 37 for $150,000. The Plaintiff rejected this offer and proceeded to trial. The trial judge found that the Plaintiff was 50% at fault and awarded damages of just over $56,000.
Having found that the Plaintiff was 50% at fault he awarded her 50% of her costs to the date the formal offer was made by the Defendant. Since the Defendants ‘beat’ their formal offer the Court ordered that the Plaintiff pay all of the Defendants Tariff costs from the date of the formal offer through to trial. This award of costs was apparently so significant that the Plaintiff ended up owing the Defendant money.
The Plaintiff appealed arguing that Rule 37 was in conflict with the Negligence Act, the relevant portions of which read as follows:
2. The awarding of damage or loss in every action to which section 1 applies is governed by the following provisions:
(a) the damage or loss, if any, sustained by each person shall be ascertained and expressed in dollars;
(b) the degree to which each person was at fault shall be ascertained and expressed as a percentage of the total fault;
(c) as between each person who has sustained damage or loss and each other person who is liable to make good the damage or loss, the person sustaining the damage or loss shall be entitled to recover from that other person the percentage of the damage or loss sustained as corresponds to the degree of fault of that other person;
(d) as between 2 persons each of whom has sustained damage or loss and is entitled to recover a percentage of it from the other, the amounts to which they are respectively entitled shall be set off one against the other, and if either person is entitled to a greater amount than the other, he shall have judgment against that other for the excess.
3. Unless the court otherwise directs, the liability for costs of the parties to every action shall be in the same proportion as their respective liability to make good the damage or loss. The provisions of section 2 governing the awarding of damage or loss apply, with the necessary changes and so far as applicable, to the awarding of costs, with the further provision that where, as between 2 persons, one is entitled to a judgment for an excess of damage or loss and the other to a judgment for an excess of costs there shall be a further set off of the respective amounts and judgment shall be given accordingly.
The relevant of the old Rule 37 read as follows:
R. 37(24) read:
37(24) If the defendant has made an offer to settle a claim for money, and it has not expired or been withdrawn or been accepted,
(a) if the plaintiff obtains judgment for the amount of money specified in the offer or a lesser amount, the plaintiff is entitled to costs assessed to the date the offer was delivered, and the defendant is entitled to costs assessed from that date.
(b) if the plaintiff’s claim is dismissed, the defendant is entitled to costs assessed to the date the offer was delivered and to double costs assessed from that date.
The Plaintiff asked the Court of Appeal to find that Rule 37 was trumped by the Negligence Act and to adjust the costs award accordingly.
The Court of Appeal dismissed this argument finding that Rule 37 and the Negligence Act are not in conflict with each other and can stand together. The Courts key analysis is set out at Paragraph 29 of the Reasons which I set out below: I do not find this analysis altogether persuasive. I would have thought that the Act, as superior legislation to the Rules, would be looked to first to determine each parties’ liability for costs in a situation to which s. 2 of the Act applies, and that R. 37, as an item of subordinate legislation, would then be applied if possible. Applying the classic definition of “conflict” – whether the two laws can “stand together and … operate without either interfering with the other” (see Tabernacle Permanent Building Society v. Knight  A.C. 298 (H.L.) at 302, and the leading Canadian case, Friends of the Oldman River Society v. Canada (Minister of Transport)  1 S.C.R. 3, 88 D.L.R. (4th) 1 at para. 42) – however, I agree with the Court’s conclusion in Smith v. Knudsenthat s. 3 of the Negligence Act and R. 37(24) do not conflict. I reach this conclusion not only on the basis of the opening phrase of s. 3, but also on a close construction of the Act. As was held in Flatley, the phrase “person sustaining the damage or loss” in s. 2(c) is apt to refer only to the plaintiff in any case in which the defendant sustained no injury or damage. Section 3 states that each party’s liability for costs shall be in the same proportion as his or her liability to make good the damage or loss. Having sustained no damage or loss, the defendant has no ‘entitlement’ to recovery under s. 2(c) and thus his or her liability for costs does not “track” under s. 3. As McFarlane J.A. stated in Lutes, s. 2(c) “does not provide for the awarding of damages as between persons who are at fault. This sub-section cannot apply to entitle [a defendant] to recover anything because he has sustained no damage or loss.” (Supra, at 466.)
This will be, in all likelihood, one of the last judgements dealing with the old Rule 37. I look forward to continue reporting on judgements dealing with the new Rule 37B particularly in the context of ICBC injury claims.
If you would like further information or require assistance, please get in touch.
When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.
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