Tag: Mr. Justice Bowden

Vehicle Lessor Liability Limit Over and Above That of Motorist

UPDATE – November 7, 2014 – the below decision was overturned in reasons released this week by the BC Court of Appeal
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Important reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the limit of exposure for vehicle lessor’s when their vehicles are involved in an at-fault collision.
Provisions of the BC Motor Vehicle Act and Insurance (Vehicle) Act expose lessor’s to $1,000,000 of liability when their vehicles are involved in a collision.  The BC Supreme Court was asked to interpret these provisions in the case of a $1.6 million dollar claim.
In this week’s case (Stroszyn v. Mitsui Sumitomo Insurance Company Limited) the Plaintiff sued an at fault motorist and the vehicle lessor for damages following a collision.  The quantum was agreed to at $1.6 million dollars.  The ICBC insured defendant paid out the policy limits of $1 million.    The vehicle lessor argued that they did not need to pay the balance as they were shielded by section 82.1 of the Insurance (Vehicle) Act from any payment after a Plaintiff collects $1 million.  Mr. Justice Bowden disagreed finding a lessor’s exposure, while capped at $1 million, is over and above damages collected from other liable parties. In reaching this conclusion the Court provided the following reasons:
[34]         As a lessor, under s. 86(1.2), Honda Canada is vicariously liable as a joint tortfeasor. Without the limitation in s. 82.1, it would be liable, together with the lessee, for all or part of the damages of $1,600,000. However, section s. 82.1 places a $1,000,000 limit on that liability such that Honda Canada’s portion cannot be greater than $1,000,000.
[35]         In my view, the payment of $1,000,000 on behalf of the lessee does not reduce the liability of Honda Canada to zero. It is simply a payment by one joint tortfeasor towards the total liability of the jointly liable parties. By virtue of s. 86(1.2) of the MVA, both the driver, Mr. Chen, and Honda Canada are jointly liable for the damages of $1,600,000. Pursuant to s. 82.1, Honda Canada’s portion of that liability cannot exceed $1,000,000. Of the total liability, $1,000,000 has been discharged by ICBC on behalf of the lessee, but Honda Canada remains liable as a joint tortfeasor, for $600,000.
[36]         This result is consistent with the plain meaning of s. 82.1 of the I(V)A which limits the liability of Honda Canada to $1,000,000. Its portion of the joint liability will not exceed $1,000,000. In my view, the combined effect of s. 86(1.2) of the MVA and s. 82.1 of the I(V)A is to expose a lessor, like Honda Canada, to liability as a jointfeasor, of $1,000,000, but no more. Thus, in this case, if the driver/lessee had no insurance coverage, the lessor would be liable for the amount of $1,000,000. On the other hand, if the insurance coverage of the driver/lessee resulted in a payment of $1,600,000, then no amount would be payable by the lessor, Honda Canada.

Jaywalking Pedestrian Found 75% at Fault For Collision

Adding to this site’s archived caselaw addressing fault for collisions involving jaywalking pedestrians, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with such an impact.
In last week’c case (Sandhu v. John Doe) the Plaintiff was attempting to cross a four lane road way.  She was not crossing in a designated crosswalk.  The vehicles in the curb land came to a stop and the lead motorist motioned for her to cross.  As she proceeded into the second lane she was struck by the Defendant motorist.
The Plaintiff sued the motorist that struck her and also the motorist that signalled for her to cross.  The Court dismissed the claims against the latter motorist and further found that both the Plaintiff and the motorist that struck her were at fault for the impact.  In assessing 75% of the blame on the Plaintiff Mr. Justice Bowden provided the following reasons:
[18]         In my view, as the plaintiff was not crossing the road in a crosswalk, the plaintiff was required to yield the right of way to Ahmed’s vehicle. At the same time, Ahmed was required to exercise due care to avoid colliding with a pedestrian on the highway.
[19]         I find that the plaintiff was negligent in attempting to cross the street where there was no crosswalk, marked or unmarked, and, more significantly, by walking into the lane in which the defendant Ahmed was travelling, without looking to determine if a vehicle was approaching before entering that lane.
[20]         The defendant Ahmed was also negligent in passing two stopped vehicles when the possibility of a pedestrian attempting to cross was reasonably apparent, even if he believed that the vehicles were also intending to turn into the mall after they stopped.
[21]         In my view, no liability attaches to John Doe. There is no evidence that the plaintiff made any attempt to locate John Doe. Even if he had been located, the mere act of indicating to the plaintiff to cross in front of his vehicle, in my view, would not attract liability nor relieve the plaintiff of her duty of care…
[25]         Considering the conduct of the plaintiff and the defendant Ahmed and the surrounding circumstances, I have concluded that a reasonable apportionment of liability is 25% to the defendant Ahmed and 75% to the plaintiff.

$100,000 Non-Pecuniary Damage Assessment For Chronic Pain Syndrome

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing causation and quantum of damages for chronic pain syndrome.
In this week’s case (Mohan v. Khan) the Plaintiff was involved in a 2007 collision in Vancouver, BC.  Although ICBC denied the issue of fault the Defendant was ultimately found fully liable for the crash.  The Plaintiff suffered various soft tissue injuries and went to suffer from a chronic pain disorder.  Despite some concerns about the Plaintiff’s ‘exaggeration‘ and a further finding that the Plaintiff failed to mitigate her damages the Court assessed non-pecuniary damages at $100,000.  In doing so Mr. Justice Bowden provided the following reasons:

[158] This case went to trial approximately 4½ years after the motor vehicle accident in which the plaintiff was injured. There is no question that the plaintiff suffered soft tissue injuries from the accident. Had those injuries taken three or four months to resolve, this litigation would most likely not have taken place. What has led to this court case and a substantial claim for damages is that the plaintiff asserts that she suffers from what is described as chronic pain disorder long after her physical injuries from the accident have resolved.

[159] Based on the evidence of the medical experts it is apparent that chronic pain disorder is a condition that involves both physical trauma and psychological factors…

[163] Based on the testimony of the medical experts I am satisfied that the pain described by the plaintiff, in large part, is real and I do not find her to be dishonest. However, in my view, she has exaggerated her symptoms to some degree…

[168] Having considered these opinions and the opinions of the other experts, I am satisfied that the motor vehicle accident, which I have already determined to have resulted from the defendant Mohan’s negligence, was largely, although not exclusively, the cause of the plaintiff’s “constellation” of conditions. The plaintiff has established on a balance of probabilities that the defendant’s negligence materially contributed to her condition. I am also satisfied that the plaintiff’s condition is not motivated by a desire for secondary gain. By that I mean the third principle stated by Lambert J. I accept that the plaintiff wishes to be free from her pain; however, her failure to mitigate, much like the exaggeration of her symptoms, in my view should be considered in the determination of damages.

[169] Dr. Anderson and Dr. Caillier both expressed the opinion that the plaintiff suffered from chronic pain disorder. None of the medical experts said that the plaintiff does not suffer from chronic pain disorder. The defendant’s expert neurologist Dr. Teal opined that the plaintiff’s primary problems were related to symptoms of pain which are significantly amplified by psychological factors. At the same time, he agreed with counsel for the plaintiff that some of his observations were consistent with someone with chronic pain disorder.

[170] I am satisfied that the plaintiff’s condition is properly described as chronic pain disorder…

[187] Having considered the cases referred to by counsel for both parties, and factoring in the failure of the plaintiff to mitigate as well as her exaggeration of her symptoms, I have concluded that an award of non-pecuniary damages should be $100,000.

Is an Unentered BC Supreme Court Order Effective?


After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry.  Can an order be effective if parties fail to take these usual steps?  The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.
In this week’s case (Hable v. Hable) the parties were involved in a family law dispute.  In the course of the lawsuit a Court Order was obtained.  The order was never entered and the lawsuit was eventually discontinued.  After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue.  The respondent argued that the order could not be entred because the underlying lawsuit was discontinued.  The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:









[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:

What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.

[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.).  Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)

[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel.  By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance.  Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011.  If no application is made by that date, the Order will be entered.









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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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