Reasons for judgement were released today addressing fault for a collision involving a vehicle conducting a U-turn.
In today’s case (Longford v. Tempesta) the Plaintiff was operating a scooter and was travelling behind the Defendant’s vehicle. The Defendant “put on his brakes aggressively” and the Plaintiff then stopped. The Defendant then “went to the right parking lane and stopped, aggressively applying his brakes again, and then hesitated.“. The Plaintiff then proceeded to pass the Defendant who then commenced a U-turn and the vehicles collided.
In finding the Defendant 100% responsible Madam Justice Hyslop provided the following reasons:
 I find that the plaintiff could not have anticipated that the defendant, after briefly stopping, would then turn in front of her. Nor do I find that she had enough time to observe the defendant’s actions and avoid the accident.
 The plaintiff did not state that the defendant was driving erratically when he stopped aggressively in front of her and when he parked. The defendant in his written argument, states:
14. The Plaintiff in her statement seems to have assumed that the Defendant had missed his turn, was driving erratically and ought to have anticipated some other erratic move from the Defendant and driven accordingly.
15. Further, the physical evidence of where the collision took place is more consistent with the Defendant’s version of events than the Plaintiff’s. Impact occurred very near the centre of the road when the Defendant’s vehicle had almost left the west bound lane. This would mean for the Plaintiff’s version to be correct the Defendant would had to have started from a complete stop accelerated through a turn and almost completed it before the Plaintiff arrived at the impact site.
 This does not coincide with the defendant’s evidence that he was three quarters of the way in his driveway, having crossed the eastbound lane.
 In Rai v. Fowler, 2007 BCSC 1678, Madam Justice Holmes stated:
 In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.) at 195-6, Madam Justice Southin noted that drivers are entitled to assume that other drivers will obey the rules of the road, and are required to anticipate, in other drivers, “only those follies which according to the teachings of experience commonly occur”. By implication, and as explained in Walker v. Brownlee,  2 D.L.R. 450 at 461 from which Southin J.A. quoted, a driver may bear liability if he or she became aware of another driver’s disregard of the law, or by the exercise of reasonable care should have become aware, and unreasonably failed to avoid the accident that followed from that disregard.
 When the defendant stopped aggressively in front of the plaintiff, she slowed down and was able to stop. I find there was no erratic driving on the part of the defendant such that she could anticipate that the defendant would perform a U-turn in front of her.
 I conclude that the defendant stopped as he realized that he had overshot the driveway to his workplace. I find he then went to the right, stopped again as to park, intending to go into the driveway and, in doing so, crossed the path of the plaintiff on her scooter. At no time did the defendant observe the scooter and he should have. I find that the plaintiff has met the burden of proof and that the defendant was negligent when he turned from where he was parked and into the path of the plaintiff driving her scooter. The defendant is 100% responsible for the accident. The defendant’s actions were negligent.
After the conclusion of a personal injury trial it can take several weeks if not months before judgement is granted. If relevant developments occur during this time the Court has discretion to re-open the trial. Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, canvassing this area of the law.
In today’s case (Miley v. Abulaban) the Plaintiff sued for damages as a result of personal injuries. 42 days after the Defendant closed their case the Plaintiff sought to introduce fresh evidence that the Plaintiff was fired from his employment. Despite the Defendant’s objections the Court allowed the evidence to be introduced and in doing so Madam Justice Hyslop provided the following reasons:
 The plaintiff and defendants agree as to the law for the introduction of fresh evidence. The law is as stated by Madam Justice Satanove in Inmet Mining Corp. [v.] Homestake Canada Inc., 2002 BCSC 681, as follows:
 The principles of law governing when a trial judge may re-open a case after judgment has been rendered, but before the order has been entered, has been discussed by our courts in a number of decisions. I have endeavoured to consolidate the applicable principles as follows:
1. A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).
2. The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).
3. Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).
4. The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd.,  3 W.W.R. 257 (B.C.C.A.)).
5. It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard,  S.C.R. 346; Angle v. Canada (Ministry of National Revenue),  2 S.C.R. 248).
6. New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).
 Mr. Justice Ehrcke stated in Zhu v. Li, 2007 BCSC 1467, at para. 14:
The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen,  1 S.C.R. 759 at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen,  S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
 The plaintiff offered to be examined by the defendants on this matter and the defendants have chosen not to do so. I see no purpose in the defendants pursuing this course of action as Mr. Miley may not have new employment and this would cause delay
 I must say that it is not surprising that Mr. Miley lost his employment as a result of his lie. An employer relies on integrity and honesty of an employee. This is particularly so when a person applies for employment and represents his or her qualifications. Based on representations in résumés, an employee is given duties, responsibilities and remuneration accordingly.
 Applying the principles set out above, Mr. Miley’s termination could not have been discovered by due diligence because the event of his firing had not occurred. The defendants argue that Mr. Miley knew that his résumé was false as to the representation that he had a degree when he knew he did not, and that he could have brought this to the attention of his employer at any time. That is true, but Mr. Miley did not know he would be caught and that his employer would terminate him, although as I stated earlier, it should not have been a surprise to Mr. Miley.
 The evidence is credible as the documents are disclosed terminating Mr. Miley’s employment. I find that the documents produced by the plaintiff as to his termination are credible.
 The evidence is relevant because although Mr. Miley is without employment, it may affect the issue of earning capacity or it may not, as at the time of trial Mr. Miley’s responsibilities and remunerations with Coast Capital were likely based, in part, on his having a degree. However, Mr. Miley testified that being a professional writer could be attained by education or by experience. Whether this testimony, given by Mr. Miley, was in anticipation that his lack of a degree would be revealed, I do not know.
 The evidence of his termination is neutral.
 I allow the plaintiff’s application and the evidence allowed is that Mr. Miley’s employment by Coast Capital has been terminated by them.
When Courts in BC assess damages for future ‘diminished earning capacity‘ no deduction is to be made for income taxes to be paid on those funds. Although this is not a new legal development, it is nice when Courts summarize the law in a concise statement as was done in reasons released this week by the BC Supreme Court, Vernon Registry.
In this week’s case (Kelly v. Kotz) the Plaintiff was awarded $16,000 for diminished earning capacity following injuries sustained in a vehicle collision. The basis of the award was that the Plaintiff needed to attend a rehabilitation program to address her injuries and this was an assessment of her anticipated lost earnings during this time. ICBC argued the award should be reduced by tax obligations. Madam Justice Hyslop rejected this argument and provided the following concise reasons:
 The burden of proof is whether there is a real and substantial possibility that the plaintiff will suffer a future loss of income. Ms. Kelly has met that burden. Ms. Kelly seeks $16,000.00 as a loss of wages while she pursues the program recommended by Dr. Brownlee. This future loss of income is based on Ms. Kelly’s annual income of $60,000.00 and benefits roughly estimated at $500.00 per month. Ms. Kelly will need to take three months off to attend this program; this is the basis of the loss.
 The defendants did not dispute these numbers, but disputed whether it should be a net amount as opposed to a gross amount.
 Past loss of income is a net amount after deduction of income tax. Future loss of earnings is an assessment and there is no deduction for income tax: Arnold v. Teno,  2 S.C.R. 287…
 I order that the plaintiff be awarded $16,000.00 for future loss of income.
It should go without saying that stealing and burning your own vehicle with a view to making an insurance claim is not a good idea.
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a vehicle theft/fire claim. In last week’s case (Singh v. ICBC ) the Plaintiff purchased a 2007 E-350 Mercedes. On October 24, 2009 the vehicle was found some 15 minutes from the Plaintiff’s home and “had just been ignited with fire” with flames “shooting ten to twenty feet in the air.” The luxury vehicle was rendered a total loss.
The Plaintiff made a claim to ICBC to recover damages for loss of the vehicle but they were suspicious of the circumstances and denied the claim. The Plaintiff sued for damages seeking over $94,000 in replacement cost coverage.
In denying the claim the Court found that the Plaintiff “made a key set available to someone so the Mercedes could be driven to the scene of the fire” and further that the Plaintiff conspired in the destruction of the vehicle with Madam Justice Hyslop finding that “he knew in advance what would happen to the Mercedes“.
In dismissing the claim the Court provided the following reasons:
 Constable Gibo stated that Mr. Singh was not surprised or did not express shock that the Mercedes was on fire, nor did he ask for any details as to the event. He did not care. I find that is because he knew in advance what would happen to the Mercedes.
 I do not accept that the Mercedes was stolen. Mr. Singh’s evidence was that when he purchased the Mercedes he received two sets of keys to operate it. He claims that he mislaid one set of keys, but was very clear that the keys were not lost or stolen. He refused to say when one set of keys was mislaid.
 Expert evidence is before the court that categorically states that Mr. Singh’s Mercedes could not be driven without the keys. The opinion of Mr. Seroogy is that in order to produce a new key, it requires the proper equipment and people with extensive training and experience “in multiple electronic disciplines”. Mr. Seroogy said that the process is delicate and time consuming and could not have been performed within the timeframe between when the Mercedes was last seen and the time when it was found burning. I accept this evidence.
 Mr. Crowe found that there was damage to the right side of the Mercedes. I find that this was intended to cover up the fact that the Mercedes was driven to the site of the fire with a key.
 I find that the Mercedes was driven to the scene of the fire using the keys. The Mercedes was then set on fire.
 The fact that it is unknown who participated in the theft and the destruction of the Mercedes by fire, is of no consequence.
 In his testimony, Mr. Singh completely resiles from his pleadings in which he alleges theft. Mr. Singh repeatedly testified that he was not claiming the Mercedes was stolen, but rather that it was burned. Nothing in his pleadings mentions that the Mercedes was burned.
 In his Claim File Report (by telephone), Mr. Singh claimed that the Mercedes was stolen. No mention was made of it being burned. In his statement of November 4, 2009, he refers to the fire. In his Proof of Loss, he swears that the cause of his loss was by “burned”. However, whether it was stolen or not, it could not be at the location of the fire without being driven there with the use of one of the sets of keys issued to Mr. Singh when he purchased the Mercedes.
In addition to dismissing the claim the Court ordered that the Plaintiff pay the Defendant’s costs which I would ballpark at $20,000 – $30,000. So, the end result is no vehicle, no insurance payout and a significant debt to ICBC.
Adding to this site’s archived case summaries addressing soft tissue injury damages, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a lingering whiplash injury.
In this week’s case (Kelly v. Kotz) the Plaintiff was involved in a 2009 collision. The Defendant admitted fault. The Plaintiff suffered a whiplash type injury which caused chronic headaches. Although there was improvement with time some symptoms still lingered at the time of trial. In assessing non-pecuniary damages at $45,000 Madam Justice Hyslop provided the following reasons:
 I do find that in the accident the plaintiff suffered neck and upper back injuries, and that headaches are a symptom of those injuries…
 She stated that six months after the accident there were days that she felt normal, though there were times that the headaches got worse as to severity and duration and affected her level of concentration. These descriptions are consistent with her reporting to Sarah Robson and Carey Jones.
 When Dr. Brownlee saw the plaintiff, she had normal range of motion and some pain with flexion, particularly with the extension of her neck. The plaintiff told Dr. Brownlee that her symptoms gradually improved, but never resolved themselves completely…
 I conclude that the plaintiff’s symptoms have improved as she described to Dr. Brownlee and will continue to improve.
 In assessing non-pecuniary damages, I considered the plaintiff’s special circumstances and the case law cited to me by both plaintiff and defendants.
 I award $45,000.00 for non-pecuniary damages.
While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances. Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops. Many of the workers were unrestrained in the box of the pick up truck. The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck. Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride. In reaching this conclusion the Court provided the following reasons:
 I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people….
 I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:
1) Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;
2) Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;
3) Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;
4) The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;
5) On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;
6) The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated….
296] Annie controlled the workers’ transportation and she called the shots.
 The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.
 By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.
 These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser.
 Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.
Adding to this site’s archived case summaries addressing C5/6 disc injuries, reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, addressing such an injury.
In this week’s case (Levens v. Lehman) the Plaintiff was injured in a rear end collision. She had pre-existing neck and back pain. The collision caused a herniated disc which remained symptomatic at the time of trial and had a 50% likelihood of needing future surgical intervention. In assessing non-pecuniary damages at $48,000 Madam Justice Hyslop provided the following reasons:
 I have concluded, based on all of the medical evidence and the evidence of Ms. Levens, that as a result of the accident Ms. Levens suffered a herniated disk as seen in the MRI ordered by Dr. Singh in 2011.
 I also conclude that Ms. Levens, due to her pre-existing condition, was more susceptible to a disk herniation as a result of the degenerative changes in her cervical spine.
 I further conclude that Ms. Levens’ back injury was due to myofascial pain which put her into the hospital in November of 2009. Ms. Levens has spinal stenosis in her back unrelated to the accident which was aggravated by the accident. As a result of the accident, I conclude, for about a year, Ms. Levens had additional pain that she would not have had but for the accident…
 At the time of the accident, Ms. Levens was 65 years old and at the time of the trial was age 69. Her most significant injury is the disc herniation in her neck. The pain has been severe. The myofascial pain and arthritis in her back would have been ongoing and not related to the accident. The motor vehicle accident caused increased pain which landed her in the hospital.
 She is disabled as she does not always have a full ROM in her neck. She has been unable to engage in some of her recreational and sporting activities that she engaged in prior to the accident.
 In coming to the amount of her non-pecuniary damages, I take into consideration that Ms. Levens had a pre-existing condition in her neck which was described by Dr. Singh as “the car accident did cause the final blow to the patient’s disc bulging at a spot that was already weak and had some problems previously.”
 I award the plaintiff $48,000.00 in non-pecuniary damages.
Knowingly riding in a vehicle involved in a collision where the at fault driver does not have the owner’s consent can lead to legal headaches when it comes to being compensated for injuries. Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with such a potential scenario.
In this week’s case (Schoenhalz v. Reeves) the Plaintiff was badly injured while riding as a passenger in a vehicle involved in a 2007 collision. The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture. Damages of $282,992 were assessed.
The driver of the vehicle was found to be at fault. The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner. Accordingly the lawsuit against the vehicle owner was dismissed. The driver was 15 years of age at the time and did not have a license. The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.
Why does this matter? While this judgement did not get into collections issues such a finding could be problematic.
Typically a 15 year old uninsured motorist would have no means to satisfy a quarter million dollar judgement. This leaves the issue of insurance. In ‘no consent‘ situations ICBC treats the collision as uninsured leaving an injured plaintiff with only the ability to collect damages under either section 20 of the Insurance (Vehicle) Act or under their own Underinsured Motorist Protection plan (UMP).
While the above insurace plans often are valuable in satisfying an uninsured judgement, there are exceptions as to who can access these. One such exclusion deals with knowingly being in a vehicle without driver consent. A Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”
A similar exclusion exists if a Plaintiff seeks to access their own UMP coverage. Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.”
When seeking to collect the judgement from ICBC such a judicial finding may cause ICBC to deny payment on the basis that a person “ought to know” that an owner likely is not providing consent to an unlicensed individual operating the vehicle. This area of law has received scarce judicial commentary but these coverage exclusions should serve as a stark reminder to individuals considering taking a ride with an unlicensed driver.
Adding to this site’s BC soft tissue injury caselaw database, reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for a lingering Grade II soft tissue injury.
In the recent case (Nokleby v. Fiddick) the Plaintiff was involved in a 2007 rear-end collision. Fault was admitted by the rear motorist. The Plaintiff suffered from soft tissue injuries to his neck and shoulder and these continued to be symptomatic at the time of trial and were expected to linger into the future. The Plaintiff also advanced allegations that the collision caused fibromyalgia and PTSD although this evidence was not accepted. In assessing non-pecuniary damages for the lingering soft tissue injuries at $40,000 Madam Justice Hyslop provided the following reasons:
 I find that the plaintiff, as a result of the accident, injured his neck which caused headaches and injured his left shoulder. I find that as a result of the shoulder injury the plaintiff can continue with his employment activities and all his activities and responsibilities both at home and on the farm. I find that in performing some of his farm activities he may experience some discomfort…
 I find also the plaintiff’s shoulder injury interferes with him being able to split wood to heat his house. The plaintiff claims that as a result of his injuries, in particular his shoulder causes him to fall more. However, Dr. Laidlow found no medical explanation for this…
 I award the plaintiff $40,000.00 in non-pecuniary damages. In doing so, I take into consideration the difficulties the plaintiff suffered in pursuing his farming activities.
While this is certainly not a new legal development (you can click here to access my archived posts addressing this topic) reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming yet again that a verbal agreement can create a binding injury claim settlement and that refusing to sign the appropriate closing documents does not create an escape route for a litigant that regrets their decision.
In this week’s case (Robertson v. Whistler (Resort Municipality)) the Plaintiff was injured when she fell in a shower owned by the Defendant. She was 8 years old at the time. She started a lawsuit when she was 20. In the course of the lawsuit the Defendant made a global settlement offer of $1,400. The Plaintiff, in a phone conversation with the Defendant’s lawyer stated that she “wished to accept the $1,400 offer“.
The Plaintiff later refused to sign an agreed to Consent Dismissal Order. The Plaintiff testified that “until she signed the offer and signed the order, there was no settlement“. Madam Justice Hyslop disagreed and dismissed the lawsuit finding there was a binding settlement. In addition the Court awarded the Defendant costs from the date of the settlement onward (which could result in the Plaintiff owing the Defendant money).
In confirming that a binding settlement was reached with the verbal agreement the Court provided the following reasons:
 Contract law applies to settlement agreements provided no contractual grounds to set aside the contract exist. Example: mutual mistake, lack of capacity, duress or fraud: Robertson v. Walwyn Stodgell Cochrane Murray Ltd.,  4 W.W.R. 283, 24 B.C.L.R. (2d) 385.
 Settlement agreements need not be in writing to be enforceable. This was recognized in Sekhon v. Khangura, 2009 BCSC 670.
 Even if the oral agreement contemplates that it be reduced to writing, it is still enforceable: Young et al v. Fleischeuer et al, 2006 BCSC 1318. A party may decide not to pursue certain heads of damages as claimed and a settlement may be reached without addressing that particular head of damage: Prasad v. Ho,  B.C.J. No. 643…
 The plaintiff changed her mind and repudiated the settlement as a result of the reaction of her father and the involvement of her aunt, Ms. MacDonald.
 I conclude that on December 16, 2010, the plaintiff entered into a binding settlement agreement. This action is dismissed with costs awarded to the defendant upon the basis that the sum of $1,400.00 due to the plaintiff will be set-off against the defendant’s assessed costs. Costs will be assessed under Appendix B, Scale B of the Supreme Court Civil Rules.