Tag: Madam Justice Dillon

Damages Awarded in "No Impact" Motor Vehicle Incident


As previously discussed, given the right circumstances a lawsuit for damages following a motor vehicle incident can succeed even if there is no impact between vehicles.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this reality.
In this week’s case (Pang v. Dhalla) the Defendant made a lane change into the Plaintiff’s lane of travel.  This was done negligently forcing the Plaintiff to bring his vehicle to an abrupt stop.   The Plaintiff alleged the incident caused a disk injury although this claim was rejected.  Despite this the Court found the Plaintiff did suffer some modest soft tissue injuries due to the Defendant’s negligence and assessed non-pecuniary damages at $5,000.  In finding the Defendant liable for damages caused in a ‘no-impact’ incident Madam Justice Dillon provided the following reasons:

[7] Based upon this evidence, the plaintiff has not proven that there probably was an impact or collision between the vehicles. At best, the plaintiff hard braked to avoid an accident after the defendant turned into his lane. From the actions of the plaintiff in slowing as it became apparent that the defendant was moving her vehicle into his lane and from the evidence of the defendant, I conclude that the defendant signalled her lane change. It cannot be determined that Ms. Lee was in a position to see or not to see a signal.

[8] However, the defendant was negligent in changing lanes before ascertaining that it could be made safely without affecting the travel of another vehicle, in this case, the plaintiff’s vehicle. The defendant had to hard brake to avoid an accident. If the defendant had looked at her blind spot, she would have determined that she could not safely enter the curb lane. Her failure to do so caused the plaintiff to hard brake….

[20] In my view, the plaintiff has not proven that the braking of his vehicle to prevent an accident caused anything other than a minor exacerbation of pre-existing pain in his neck, shoulder, and lower back. Because of his failure to fully inform both doctors, their opinions about the accident causing a disc injury are seriously undermined. The minor nature of the injuries is supported by the fact that the plaintiff’s neck and shoulder symptoms resolved within a few months, the plaintiff did not take time off work, and he needed little medication. The effect on lifestyle was minimal.

[21] The defendant provided a range of damage for non-pecuniary loss of $2,500 to $5,000. The plaintiff described a range of $20,000 to $40,000. Having considered the cases provided, I conclude that an award of $5,000 is appropriate.

The Low Threshold For Video-Conference Testimony in BC Injury Trials


When injury claims go to trial witnesses may live far from the Court house.  These distances can make it very inconvenient for Plaintiffs to assemble all the necessary people to prove their case.  Fortunately, the BC Evidence Act allows witnesses to give their evidence, in certain circumstances, by way of video-conference.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating that such orders can be routinely made.
In today’s case (Nybo v. Kralj) the Plaintiff was injured in an accident.  Her claim went to trial before a Jury in Vancouver.  She wished to have her sister (who lived in Penticton), her boyfriend at the time of the accident (who lived in Washington) and her colleague (who lived in Ontario) to give “before and after” evidence to help illustrate the impact of the accident related injuries on her life.
The Plaintiff applied to have these witnesses testify by video conference.  The Defendant opposed.
The Plaintiff’s lawyer did not present any evidence in support of the application.  The witnesses were not subpoenaed.  The witnesses did not even swear an affidavit explaining why they could not (or didn’t want to) attend court.  Despite all of the this Madam Justice Dillon ordered that they could testify by video.  In reaching this conclusion the Court reasoned as follows:

[8] Testimony of a witness at trial by videoconferencing is provided for under s. 73 of the Evidence Act, R.S.B.C. 1996, c. 124. The pertinent sub-sections of s. 73 say:

(2) A court may allow a witness to testify in a proceeding by means of closed circuit television or any other technology that allows the court, the parties and the witness to engage in simultaneous visual and oral communication, unless

(a) one of the parties satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice, or

(b) the technology is not available for the proceeding.

(3) If a party objects to the court receiving evidence in the manner described in subsection (2), the court may consider any of the following circumstances:

(a) the location and personal circumstances of the witness;

(b) the costs that would be incurred if the witness had to be physically present;

(c) the nature of the evidence the witness is expected to give;

(d) any other circumstance the court considers appropriate.

(4) A party intending to call a witness to give evidence in a proceeding by means described in subsection (2) must

(a) give notice of that intention to the court before which the evidence is to be given and to all of the other parties, and

(b) pay all costs associated with the use of the technology unless otherwise ordered by the court.

(5) Notice must be given under subsection (4) (a)

(a) at least 5 days before the witness is scheduled to testify in the proceeding, or

(b) if the court considers it appropriate in the circumstances, within some shorter period specified by the court….

(8) Nothing in this section prevents a court from receiving evidence of a witness by means described in subsection (2) if the parties consent.

11]       (The BC Evidence Act) establishes that the court may allow videoconference evidence if another party does not consent unless the non-consenting party satisfies the court that receiving the testimony in that manner would be contrary to the principles of fundamental justice. In my view, this expresses a narrower view of the exclusion of videoconferencing and puts the onus on the party who would deny use of the technology. Factors to consider are set out in s. 73(3) of the Evidence Act.

[12] In this case, there is no suggestion that cross-examination will be adversely affected or that the evidence is of such importance that actual presence of the witnesses is required. The reasons for not consenting relate to the reasons given for the witnesses not attending which are, really, that they do not want to leave work and family commitments in order to testify. While such a common reason may have held significant weight in the past, I consider that s. 73 of the Evidence Act favours use of the technology with personal circumstances of the witness and location as only one factor to consider. Here, the witnesses will give relevant, although not crucial evidence. They are located significantly away from this courthouse, although Penticton is within reasonable distance. Given that the onus is on the non-consenting party here, the balance favours granting use of the technology for all three witnesses even though this is a jury trial. If there had been other factors affecting the Penticton witness in favour of the defendant, I may not have granted the order in her situation given the general principle. However, the balance favours the plaintiff overall in these circumstances.

Can a Lawyer Bind a Client to a Settlement Agreement Without Client Consent?


As strange as it may sound the answer is yes.  Lawyers are client’s agents and as such their actions can bind their clients.  If a lawyer agrees to a settlement even if the lawyer does not have or is mistaken about their client’s instructions the settlement agreement can be binding.  Reasons for judgement were released today demonstrating this.
In today’s case (Park v. Palmer) the Plaintiffs took their claim to trial.  The Plaintiffs were represented by their niece who was a lawyer from Toronto.
At the close of the Plaintiffs case the Defendants brought a no-evidence motion. (a motion to dismiss a plaintiff’s claim for failure to call any evidence on an essential element of the case).
The Plaintiffs were apparently concerned about the costs consequences they’d be exposed to if the motion was successful.  Before the Court ruled on the motion the Plaintiff and Defence lawyers had settlement discussions.  When the parties returned to court the Defence lawyer advised the court as follows:
My Lady, I can advise the court of a settlement that was just reached between my friend and I.  The plaintiffs agree to withdraw and discontinue their action, and the defendants, in turn, agree to waive their costs.  We wanted to alert Your Ladyship and with apologies for not being able to advise you of this earlier, but that is the arrangement.  That is the settlement that has been agreed to between myself and my friend.
The Plaintiffs lawyer was present in Court when this statement was made.
The settlement the Plaintiff lawyer allegedly accepted was a Defence offer to “settle the matter by waiving costs and disbursements in return for the plaintiffs agreeing to discontinue and withdraw thier action against the defendants“.
Upon hearing that a settlement was reached the Court did not rule on the No Evidence Motion.  Some time passed and the parties could not agree on whether or not there was a binding settlement.  The Plaintiffs said that “they did not give instructions to settle (to their lawyer)”.  The parties ultimately brought this matter before the Court and asked the presiding Judge to decide “whether or not a settlement was reached in this matter“.
Madam Justice Dillon held that the matter was indeed settled.  Specifically the Court held:
Certainly (the Plaintiffs lawyer) was in the courtroom at that time (the court was informed there was a settlement).  There is some controversy in the affidavits before me as to whether or not (the Plaintiffs) were in the courtroom.  Notwithstanding that uncertainty, clearly (the Plaintiffs lawyer) had authority, as lawyer, agent, and representative of the plaintiffs, to speak on their behalf before the court.  As a lawyer and officer of the court, this court can rely on what (the Plaintiffs lawyer) tells the court. ..

[11] While I realize that this creates an unfortunate situation for the plaintiffs, there is no doubt that (their lawyer) settled this matter before the court by the plaintiff agreeing to withdraw and discontinue their action and the defendants waiving their costs.  The plaintiffs’ recourse now is against (their lawyer) for failure to follow instructions, if that indeed is the case.

[12] This court has to rely on the statements of legal counsel and, in the circumstances before me, I have no alternative but to enforce the settlement that was stated before me on July 4, 2008.

[13] Therefore, I order that this matter is discontinued.  The plaintiffs’ writ and statement of claim is ordered to be withdrawn, and there will be no costs to the defendant.

It is worth noting that the Court did not decide whether the Plaintiffs’ lawyer actually had instructions to accept the settlement matter.  Ultimately it does not matter.  If the Plaintiffs did give those instructions then the case was settled.  If the lawyer acted without instructions the case would still be settled but as Madam Justice Dillon pointed out “the Plaintiffs’ recourse is now against (their lawyer) for failure to follow instructions, if that indeed is the case“.

There is a good lesson to learn here for both clients and lawyers.  If you are giving your lawyer instructions to settle it is vital to know that your lawyer can create an agreement that is binding on you even if you later change your mind.   For this reason you should be committed to the result when giving a lawyer settlement instructions.  For lawyers, it is a good idea to take important instructions in writing so that there is clarity and certainty before settlement offers are made and accepted.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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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