Tag: Madam Justice Gropper

"Persistence in Bringing Vexatious Litigation Has Significant Consequences"

One myth I like to dispel is the idea that there are too many frivilous lawsuits in Court or that the system is not equipped to deal with such claims when they do arise.
Special interest groups push stories of ‘lawsuit abuse’ arguing that change is necessary.  The truth, however, is that frivolous lawsuits can and do get weeded out of Court.  As previously discussed, BC Courts have very effective tools for eliminating bad lawsuits the most powerful of which is a “vexatious litigant” order.
In short a vexatious litigant order can strip a person of their right to sue without first getting judicial approval.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making such an order. The reasons are here and are worth reviewing in full to gain insight into the consequences of such an order and the circumstances when one could be made.

$80,000 Non-Pecuniary Damage Assessment For Aggravation of Pre-Existing Back Pain; Indivisible Injuries Discussed

Reasons for judgement were released last week assessing damages for a permanent aggravation of pre-existing back and neck injuries as a result of a collision.
In last week’s case (Delgiglio v. British Columbia (Public Safety and Solicitor General)) the Plaintiff was involved in a 2009 collision.  His vehicle was struck by an RCMP cruiser that ran a red light.  The Defendant motorist claimed the crash happened due to faulty brakes but the Court rejected this suggestion and found the officer fully at fault.
The Plaintiff suffered from various pre-existing injuries including chronic back pain.  Despite this he was able to work.  Following the 2009 collision his injuries were aggravated and disabled the Plaintiff from his occupation as a truck driver.  The Plaintiff’s disability was expected to continue.   In assessing non-pecuniary damages at $80,000 Madam Justice Gropper made the following findings:

[91] The evidence supports, and I have found, that Mr. Del Giglio suffered a re-aggravation of his neck and lower back pain in the January 2009 accident. He has reached a plateau in his recovery. He has not returned to his baseline level of activity which he enjoyed before the accident. He has not returned to his pre-accident level of pain. Though initially optimistic, Mr. Del Giglio’s physicians are all of the view that his prognosis is “guarded at best.”

[92] Mr. Del Giglio has suffered pain and loss of enjoyment of his life. The injuries have had a serve impact. I accept that Mr. Del Giglio’s pain has been distressful and have affected his emotional state. Despite Dr. Monk’s not having diagnosed depression, Dr. Purtzki did find such symptoms, which are anticipatable, given the reduction in the activities, including the ability to work, which Mr. Del Giglio has experienced.

[93] On the other hand, Mr. Del Giglio has been able to maintain his musical career, a vocation that he clearly thrives upon. That is a factor which I will take into account.

[94] A further factor is that Mr. Del Giglio is aging and some deterioration in his cervical spine is, in Dr. McKenzie’s words, “not uncommon.”  I accept that he would have had some increased pain at some point, but the accident accelerated the onset…

[97] Having reviewed the cases provided, I conclude a fair and reasonable award for non-pecuniary damages is $80,000.

In addition to the above this case is worth reviewing for the Court’s discussion of indivisible injuries at paragraphs 73-86 of the reasons for judgement and the arguments of defence regarding the effects of a release for a previous collision contributing to an indivisible injury.

Mitigation of Damages and Chronic Obesity

When a Plaintiff fails to take reasonable steps to recover from injury their right to compensation can be reduced accordingly.  Reasons for judgement were released yesterday addressing this topic in the context of pre-existing obesity.
In yesterday’s case (Deligilgio v. British Columbia (Puclic Safety and Solicitor General)) the Plaintiff suffered a back injury as a result of a 2009 collision.  The Plaintiff struggled with obesity.  The evidence suggested that weight loss could help reduce the Plaintiff’s back symptoms.  The Defendant argued that the Plaintiff’s damages should be reduced due to the Plaintiff’s failure to lose weight.
Madam Justice Gropper rejected this argument finding the Plaintiff made “contextually reasonable and sincere efforts” to deal with his weight issues.  In rejecting the Defendant’s argument the Court provided the following sensible reasons:

[87] Once the plaintiff establishes that the defendant is liable for his injuries, the burden shifts to the defendant. In order to prove that the plaintiff did not meet his duty to mitigate, the defence must prove that he acted unreasonably and that reasonable conduct would have reduced or eliminated the loss. Whether the plaintiff acted reasonably is a factual question: Gilbert v. Bottle, 2011 BCSC 1389 at para. 202. Gilbert continues at para. 203:

A relevant circumstance in cases such as this is the plaintiff’s personality and condition before and after the accident. The law does not require a plaintiff to do that which cannot be controlled, nor does it require perfection in the pursuit of rehabilitation. In addition, the defendant must take the victim as found, which may affect what is to be reasonably expected. For example, a person who has struggled with life-long obesity may not be expected to lose substantial weight to discharge the duty to mitigate, even though weight loss would assist recovery. What the law requires is that the plaintiff makes contextually reasonable and sincere efforts to limit his or her damages and loss [citations omitted].

[emphasis added]

[88] The evidence is clear that Mr. Del Giglio has struggled with lifelong obesity. He has attempted to lose weight in accordance with his doctor’s advice and has been somewhat successful. The plaintiff asserts that with assistance, including physiotherapy, kinesiology, the healthy heart program, a dietician and a gym membership he will likely lose weight and build his core strength.

[89] I find that Mr. Del Giglio has made “contextually reasonable and sincere efforts” to lose weight, but would benefit considerably from professional assistance. I disagree with the defendants that his damages should be reduced to reflect his reflected failure to mitigate. The defendants have not proven a failure to mitigate.

The Law of Indivisible Injury Compensation Concisely Summarized

If two or more events cause a single “indivisible injury” a Defendant who in part contributes to the injury can be held accountable for the entire loss.  This legal principle was concisely summarized in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Estable v. New) the Plaintiff was injured in a 2003 motor vehicle collision.  She suffered previous and subsequent trauma.  The Court found that while not the sole cause, the collision was a cause of the Plaintiff’s various soft tissue injuries.  The Plaintiff was compensated for these and in doing so Madam Justice Gropper provided the following short and helpful summary of the law of indivisible injury compensation:

[53] Divisible injuries are those which are capable of being separated out, such as injuries to different body parts or injuries to which the defendant has not contributed: Bradley, at para. 20; see also Athey, at paras. 22-25. Whether damage derived from multiple sources is divisible for the purpose of determining the extent of the liability of one defendant is a question of fact: Hutchings v. Dow, 2007 BCCA 148 at para. 13.

[54] If the injuries are divisible, the devaluation approach from Long v. Thiessen (1968), 65 W.W.R. 577 at 591 (B.C.C.A) is the appropriate method for determining the amount of damages that can be attributed to the defendant. This was discussed in Bradley at para. 33:

[33] The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries. The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial. Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[emphasis in original]

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court made the following findings with respect to her injuries:

[60] I find that Ms. Estable’s remaining complaints were aggravated or exacerbated by the October 2003 injuries. These complaints include: pain in her neck, pain in her left and low back, and pain in her left anterior shoulder. They also include the injury to her sternum, although I find, based on the medical evidence, that this injury was a soft tissue injury and not a fracture.

[61] Applying the principles from Bradley, Ms. Estable has a claim against Mr. New for these complaints because they are indivisible; Mr. New’s negligence aggravated or exacerbated those injuries. While the post accident injury producing events may also have had a similar effect, Ms. Estable can recover her damages entirely from Mr. New. There may be other tortfeasers who are jointly liable, but Mr. New’s right to apportionment among them does not affect Ms. Estable’s right to claim the entire amount from him…

[77] Applying the enumerated factors, Ms. Estable is now 56 years old. She suffered soft tissue injuries of the cervical and lumbar spine and to the left shoulder. She suffered a chest contusion and the possibility of sternal fractures or rib fractures. Her injuries have caused her to change her lifestyle; she is unable to engage in performance art or yoga…

[81] I assess Ms. Estable’s non-pecuniary damages at $30,000.

ICBC's Hit and Run Appeal "Doomed to Failure"

Reasons for judgement were released today by the BC Court of Appeal dismissing ICBC’s appeal of judgment finding them liable for injuries caused during a 2004 “gas and dash” incident.
In today’s case (Nayar v. ICBC) the Plaintiff was the owner of a gas station.  An unknown motorist fuelled her vehicle and attempted to drive away without paying.  The Plaintiff confronted the unknown motorist and stood in front of her vehicle.  The motorist then inched forward and revved her engine.  The Plaintiff placed his palms on the hood of the vehicle at which time the motorist “accelerated to 100 kph while (the Plaintiff) lay on the hood of the vehicle, and then turned sharply, throwing him to the pavement“.
The Plaintiff could not ascertain the identity of the driver so he sued ICBC for compensation under section 24 of the Insurance (Vehicle) Act.  At trial ICBC argued that “the plaintiff is wholly to blame for his injuries“.  Madam Justice Gropper disagreed finding ICBC liable to pay the Plaintiff damages.  In doing so the Court made the following findings:

[]           It is unfortunate that the plaintiff placed himself in front of the Volkswagen, but Jane Doe was entirely at fault.  The events and the injuries which the plaintiff sustained were due to Jane Doe’s blameworthiness.  Even if the plaintiff should have followed the gas-and-dash instructions, and even if he went in front of the Volkswagen, and even if he made a stop motion and placed his hands on the hood of the Volkswagen, the blameworthiness or fault which caused the plaintiff’s injuries were the actions of Jane Doe.

[]           Unfortunately, since the date of this incident, another gas attendant not following the gas-and-dash instructions was dragged to his death by a customer who did not pay for his gas purchase.  The Legislature has responded by implementing a system where customers must pre-pay for their gas purchases.  This is a much more infallible gas-and-dash avoidance procedure.

[]           In the result, I find Jane Doe to be solely responsible for the event which occurred and the plaintiff’s injuries which resulted.

[]           Judgment is therefore entered against the nominal defendant, ICBC.

ICBC appealed this finding although the appeal was dismissed for lack of timely prosecution.  ICBC Applied to reinstate the appeal but this failed as well with the BC High Court finding that ICBC’s appeal was ‘doomed to failure’.  The Court of Appeal provided the following useful reasons:

[6] I am unable to see any error in principle in the reasons expressed for dismissing the application to reinstate the appeal. In my view, it is clear Groberman J.A. considered each of the criteria that govern the kind of application that was before him. As he stated, it was not for him to assess whether the appeal would succeed or fail save for the very limited purpose of deciding whether it was appropriate to reinstate it. That required him to consider the merit in the one ground of the appeal advanced. Having done so, he determined it was insufficient to justify reinstatement, which was the issue before him. That was his determination to make. I see nothing inconsistent in his effectively characterizing the merits of the appeal as being so very weak as to render the appeal doomed to failure. For the purpose of considering reinstatement, he did not have to decide there was absolutely no merit in the appeal to conclude it was doomed, only that there was insufficient merit to justify its being reinstated.

Expert Witness Criticized by BC Supreme Court for "Advocacy"

Further to my previous posts on this topic, expert witnesses have a duty to be objective when giving their evidence and opinions in a BC Supreme Court trial.  Rule 11-2 specifically sets out that “In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.”
In addition to the above, the BC College of Physicians and Surgeons (the governing body for BC doctors) has provided the following feedback to its members:  “ Additionally, whether physicians are acting as experts in the capacity of treating physicians or independent medical experts, they still must provide balanced and objective reports.   The College does recommend that, when asked to provide an expert opinion, treating physicians discuss with their patients the physician’s duty to assist the court and not be an advocate for any party.”
If experts fail to give objective evidence their opinions can be excluded from trial and they open themselves to criticism from the trial judge.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Warkentin v. Riggs) the Plaintiff was involved in a 2005 motor vehicle collision.  The Defendant admitted fault for the crash.  The Plaintiff sustained various injuries including an alleged post traumatic Fibromyalgia Syndrome.  In support of her case the Plaintiff filed several medical reports.  The Defendant objected to one of these being introduced on the basis that the expert ignored his duty to the Court and presented his evidence not as a neutral expert but rather as an ‘advocate‘.  Madam Justice Gropper agreed and excluded the expert’s evidence.  In doing so the Court provided the following harsh criticism:
[58] Dr. Hunt’s report adopts a particular format. He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy…

[81]        I find that Dr. Hunt is not a neutral and impartial expert providing assistance to the court, but rather an advocate on behalf of the plaintiff. The report is argument, not opinion. He did not provide a balanced discussion of fibromyalgia and its possible application to the plaintiff’s case. His discussion of the medical principles and their application to the plaintiff’s case is biased, argumentative and contrary to the requirements for the admissibility of an expert report.

[82]        Dr. Hunt’s own description of his role as an “Expert Medical Legal Consultant providing opinions on behalf of patients with chronic pain who are seeking legal remedies with respect to their condition” indicates that he does not consider his role as an expert to be that of an objective advisor to the court.

[83]        Dr. Hunt’s perceived role is amply demonstrated in his report. The format he uses is designed to emphasize matters which support the plaintiff’s claim and his diagnosis.

[84]        Dr. Hunt presents the medical literature in a manner that suggests that there is consensus about the causal connection between motor vehicle accidents and the onset of fibromyalgia. He attempted to mislead the court regarding the medical literature upon which he relies by referring only to portions which support his diagnosis and prognosis and omitting portions which do not. He does not refer to the cautions and qualifications in the medical literature. He is not current with the medical literature, notably the 2006 prospective longitudinal study by Tischler, which was conducted specifically in order to test the conclusions of the Buskila study.

[85]        Dr. Hunt’s testimony, particularly in cross-examination, supports my conclusions about his report; he acted as the plaintiff’s advocate rather than as an independent expert.

[86]        Dr. Hunt’s report of March 27, 2009 is likely to distort the fact-finding function of the trier of fact, and therefore its prejudicial effect far outweighs its probative value. I find that it is inadmissible. Because the rebuttal report is a reiteration, it is also inadmissible. I specifically reject Dr. Hunt’s diagnoses as expressed in the report and his medical opinion that they were caused by the accident. I reject Dr. Hunt’s diagnosis and prognosis of fibromyalgia and his opinions about the plaintiff’s functional limitations associated with fibromyalgia.

Ultimately the Court accepted that the Plaintiff did suffer from fibromyalgia but that this was not related to the motor vehicle collision.  Madam Justice Gropper found that the Plaintiff did sustain soft tissue injuries to her neck and shoulder along with headaches as  a result of the crash.  $50,000 was awarded for the Plaintiff’s non-pecuniary damages.

In addition to the discussion of ‘advocacy‘ this decision is worth reviewing in full for the Court’s discussion of the relationship between fibromyalgia and trauma.

Surveillance Evidence Excluded From Trial for Failure of Disclosure

(Note: The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011)
As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties.  Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“.  Failure to do so can result in exclusion of the documents from trial.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision.  The Defendant admitted responsibility for the crash.  The Plaintiff sustained various  injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision.  Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.
There was a 5 month break from the beginning of the trial to its conclusion.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  When they attempted to put the video into evidence the Plaintiff objected.  Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted.  In reaching this conclusion the Court provided the following helpful reasons:

[11] The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[12] Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.

[13] The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

[14] It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).

[15] The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other party’s failure to disclose;

3.         whether excluding the document would prevent a determination of the issue on the merits; and

4.         whether in the circumstances of the case the ends of justice require that the document be admitted.

[16] Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.

[17] The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.

[18] In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.

[19] Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.

[20] Finally, I am not persuaded that the ends of justice require that videos be admitted.

[21] I therefore find that the videos are not admissible.

Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.  The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.

More on Out of Court Statements and Their Use at Trial in ICBC Injury Claims

Further to my two recent articles discussing this topic (these can be found here and here) reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, demonstrating yet again the powerful impact out of court statements can have in an ICBC claim.
In today’s case (Aymont v. Capp) the Plaintiff sustained serious injuries in a 2004 BC motor vehicle collision.  She was driving a Mazda Protege and was exiting a gas station parking lot.  She intended on turning left.  As she entered the roadway the Defendant approached from her left hand side.  A ‘t-bone’ type of collision occurred.
The Plaintiff testified at trial that when the Defendant’s vehicle struck hers she was at a stop and her vehicle had not entered the roadway and was “two feet before the fog line“.  The Defendant disagreed and testified that as he approached the gas station the Plaintiff pulled her vehicle into his lane of travel leaving inadequate time to avoid the collision.
During trial the Plaintiff was confronted with various out of Court statements attributed to her where she discussed the collision.  These included statements given to ICBC, a police officer and a chiropractor.  These previous statements were summarized as follows by Madam Justice Gropper:

[9]             The day following the accident, May 15, 2004, Ms. Aymont went for treatment to her chiropractor’s office, Dr. Susan Holroyd.  She says that she felt dizzy and nauseous, disoriented and in a great deal of pain that morning.

[10]         Dr. Holroyd produced her clinical records, which included a “motor vehicle accident history” form.  Ms. Aymont says that she does not recall the form or filling it out.  She cannot recall if it is her handwriting on the form or not.  The handwritten notations (in italics)  on the form state, in relation to the accident:

State How Accident Happened in your own words.

I had stopped at the entrance of gas st. looked both ways saw no one and began onto road – was hit by a truck travelling very fast.

Where you stopped Yes/No?

No [circled]

Estimate your speed?

10 km/h

Brakes on Yes/No?

No [circled]…

[13]         Cst. Rudy Andreucci telephoned Ms. Aymont the day following the accident and they arranged to meet on Sunday, May 16, 2004 at the RCMP Detachment in Westbank.  Cst. Andreucci testified that the purpose of the meeting was to give Ms. Aymont a traffic violation ticket. Cst. Andreucci served a violation ticket on Ms. Aymont for a breach of s. 176(2) of the Motor Vehicle Act: emerging vehicle: failure to yield.  He noted on the reverse side of the ticket what Ms. Aymont said to him:

04-5-16 V.T issued at office dri Nancy Aymont advised she just didn’t see him.  She knows better-than go on without being sure….

[15]         On May 21, 2004, Ms. Aymont met with Mr. Bonner of the Insurance Corporation of British Columbia (“ICBC”) at his office.  Mr. Bonner is a bodily injury adjuster.  He was the adjuster assigned to Ms. Aymont’s file.  Another adjuster was assigned to Mr. Capp’s file.  Mr. Bonner said that he asked questions and typed the answers into the ICBC note taking system on his computer.  He prepared a sketch based on the information provided to him by Ms. Aymont.  In the statement Mr. Bonner recorded Ms. Aymont stating:

I looked to my right first, and then the left and Bartley Road was vacant, and I thought to myself how often does that happen on a Friday afternoon.  After looking right, then left, I looked right again, and that is the last thing I remember…  If the other driver wasn’t going so fast he probably could have stopped.  My husband drove the road the next day.  At the 50 km/h speed limit, and stopped without skidding before the driveway… I was knocked out and can’t say how far I pulled forward from the exit onto Bartley Road before being hit.

[16]         Ms. Aymont also provided a rough sketch showing where the vehicles were as she approached the exit.

[17]         Ms. Aymont does not recall saying “I can’t say how far I pulled out from the exit onto Bartley before being hit.”

[18]         Mr. Bonner produced a hard copy of the statement for Ms. Aymont to review.  She thought that the second page statement was “all mixed up.”  Ms. Aymont says she made certain corrections to the statement in handwriting.  The last sentence of the statement is “I have nothing to add to this statement, which is true to the best of my memory.”  Ms. Aymont signed the statement….

The Court ultimately rejected the Plaintiff’s evidence and accepted the Defendant’s.  This verdict was largely reached based on the Plaintiff’s prior statements.  Madam Justice Gropper gave the following useful reasons demonstrating the damage that can be done with ‘prior inconsistent statements‘:

[77]         Mr. Capp’s evidence that the Aymont vehicle was moving when he first observed it is consistent with the statements that Ms. Aymont made to her chiropractor.  In the form that she completed, or directed Dr. Holroyd to complete, she says that she was not stopped and was moving at about 10 km/hour.  In her statement to Cst. Andreucci she stated that she just did not see Mr. Capp’s vehicle.  She told Mr. Bonner that she had pulled forward from the exit onto Bartley Road before being hit.  All of these statements are consistent with the circumstances that Mr. Capp describes.

[78]         I find as a fact that Ms. Aymont was not stopped “well before the fog line”.  She was moving from the exit into the southbound lane of travel on Bartley Road.  She was going slowly, likely less than 10 km/hour.  Her foot was not on the brake.  She was not looking in the direction of the oncoming traffic, but was engaged in a conversation with her son Joel who was sitting in the passenger seat, and had turned her face toward him to talk about his drink.

[79]          Ms. Aymont did not yield the right of way to Mr. Capp who was the dominant driver. …

[82] In all of the circumstances, I find the plaintiff is 100% at fault for this accident.

This case is also worth reviewing for the Court’s discussion of the duties of expert witnesses.  Both the Plaintiff and the Defendant retained experts to give accident reconstruction evidence.  The Plaintiff’s expert was soundly criticized for giving evidence as an “advocate” instead of a neutral witness.  The criticism can be found at paragraphs 66-73.

The Problem With Losing An ICBC Injury Claim at Trial

When Plaintiffs have their injury claim dismissed in the BC Supreme Court, not only do they get nothing to compensate them for their injuries, they actually end up having to pay the Defendant money.   How can this be?  The reason is something called “costs“.  Generally speaking, the loser has to pay the winner’s Court costs and disbursements.
So how much money are we talking about here?  The answer is thousands, sometimes tens of thousands, sometimes even over one hundred thousand dollars.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In this week’s case (Pearlman v. Atlantic Trading Company Ltd.) the Plaintiff was involved in a motor vehicle collision in 2004.  He sued the party he claimed was responsible for his injuries.  He also sued ICBC alleging that ICBC “had requested a medical report from his family doctor whose authorization to provide the report had been revoked by the Plaintiff.”.
A jury dismissed the Plaintiff’s first claim and a Judge dismissed the Plaintiff’s second claim.  ICBC was awarded their Court costs.  The BC Supreme Court assessed these at $66,000 for the two claims combined.    The Plaintiff then appealed these costs awards.    Madam Justice Gropper dismissed the Plaintiff’s appeals and upheld the awards.
While this case does not contain any unique or novel principles of law, it is worth reviewing because it demonstrates the stark realty that people can pay a very high price if they are on the losing end of an ICBC claim in the BC Supreme Court.
If you are interested in more information on costs consequences in BC Supreme Court injury lawsuits you can click here to read my archived posts on this topic.

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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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