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Tag: Madam Justice Donegan

Pecuniary Diminished Housekeeping Capacity Claim Succeeds at Trial

Last year the BC Court of Appeal clarified the law surrounding claims for diminished housekeeping capacity.  In short the court noted care must be taken to determine if a loss is for pecuniary vs non-pecuniary diminished housekeeping capacity.  This distinction is perhaps more important than ever given the recent legal changes capping the non-pecuniary rights of British Columbians.

To this end helpful reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, assessing damages for pecuniary diminished capacity.

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"Standard of Perfection" Not Needed for Victims of Hit and Run Collisions

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.
In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact.  The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision.  The Plaintiff drove away from the scene and did not find any other witnesses.  The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.
ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist.  Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances.  In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62]         Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63]         However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64]         In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65]         He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66]         Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67]         None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68]         ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69]         I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70]         Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71]         Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72]         I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73]         In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74]         For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.

$35,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing "Significant" Muskuloskeletal Issues

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis.  The collision caused soft tissue injuries which aggravated these conditions.  In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:
[79]         In his July 26, 2011 report, Dr. Wade opined:
The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.

It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.
[80]         Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:
In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.
[81]         He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.
[82]         Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…
[92]         I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.