Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
In the recent case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”. The lawsuit was ultimately dismissed with Mr. Justice Brown ruling “ In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.”
Prior to trial ICBC made a formal settlement offer of $5,000. ICBC asked for double costs. The court agreed noting the offer ought to have been accepted. In granting the request for double costs Mr. Justice Brown provided the following reasons:
 The defendant submitted, reasonably, that considering the very minor nature of the collision, the plaintiff should have accepted the offer. Counsel for the defendants correctly pointed out no complicated issues required the plaintiff’s consideration before accepting the offer. There is no claim advanced for loss of past or future income and no future care costs claimed. Considering the very minor slow-motion contact between the vehicles, it cannot be reasonably maintained that there is any reasonable basis for such claims.
 I find the defendants entitled to double costs for the period between the date of the offer to settle, March 1, 2017, and the commencement of trial, on March 7, 2017. Considering all the circumstances, the offer ought reasonably to have been accepted by the plaintiff.
Tag: Mr. Justice Brown
Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, ordering a Plaintiff to pay double costs after having a personal injury lawsuit dismissed.
I have spent much time documenting judicial treatment of the so-called ‘low velocity impact’ defence. In short, courts routinely accept motorists can be injured in low velocity collisions. Despite this, courts occasionally dismiss an injury claim involving modest forces. Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, with such an outcome.
In today’s case (Sandhu v. Raveendran) the Plaintiff was a passenger in a vehicle driven by her husband which was involved in a parking lot collision with another vehicle with the Court noting “the contact between two vehicles was relatively superficial”.
The Plaintiff alleged injury. The Court rejected this noting that “ I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury“.
In dismissing her injury claim Mr. Justice Brown provided the following reasons:
 I will now discuss the evidence and state my findings:
1. The Chevrolet was stationary at impact.
2. The defendant, Mr. Raveendran, started the Honda. He took his foot off the brake. The tires slowly completed their circumference, two to three turns of its tires, before the right side of the Honda contacted the left driver-side door of the Chevrolet.
3. The vehicles were at a slight angle on impact.
4. The point of impact was not bumper to bumper. There is no indication the solid substructures of the vehicles were involved. The visible damage was not deeply intrusive into the bodies of the vehicles; a fairly shallow dent of the surface of the driver’s door of the Chevrolet and some surface scraping of the right rear panel and leading edge of the bumper on the Honda is all that is noteworthy.
5. The plaintiff relied on the fact that the cost of repairing the Honda was $1,200 and the Chevrolet, written off, $1,500. Considering the cost of vehicle repairs generally, these figures do not denote significant impacts, rather, more likely, in my opinion, the costs of materials and labour for prepping, taping, sanding, painting, et cetera. There is no indication of parts replacement or significant structural damage requiring repair.
6. There is no evidence either vehicle was moved from its path or static position, or moved about by the impact.
7. The plaintiff complained only of a jolt, the nature of which she had difficulty explaining, but she denied her body came into contact with the interior of the car or that she was moved about.
8. The video surveillance segments, viewed in congress with the photographs of the vehicle damages, which the court viewed in the range of 10 times, convey a strong impression of a very minor impact, most unlikely to cause injuries, let alone ones requiring a recovery period of three to four years.
9. The plaintiff had recovered from the injuries related to her previous accident.
10. The plaintiff reported immediate onset of symptoms, but instead of reporting to Dr. Kaler’s office about 100 feet away, or to the hospital, drove to the ICBC Claim Centre to report the Accident.
11. The plaintiff submits the fact she attended physiotherapy sessions after the birth of her child argues against invented symptoms. But as I mentioned earlier, there is no evidence showing for what reasons she attended the clinics, the nature of the treatments, the symptoms reported or observations made. Dr. Kaler had clinically noted concerns of morbid obesity; and, as the plaintiff granted, giving birth to a child can cause physical problems. I cannot find a link between the need for physiotherapy and the alleged trauma.
12. As for depression, Dr. Kaler’s evidence shows the plaintiff earlier had been concerned about becoming pregnant again. The basis for linking this minor accident to alleged depression, say, stemming from a chronic pain syndrome, is not present. There is no diagnosis of chronic pain, for example, to generate a logical medical link between physical trauma and depression usually seen the cases.
13. It is not plausible, and there is no persuasive medical legal evidence to show, that it would take the plaintiff three years to recover from trauma allegedly caused by the very modest forces involved in this parking accident.
 Of course, parking lot collisions may cause significant vehicle damage and some bodily injury especially when one or both parties are driving too fast. This is not one of those cases. One car was standing still, the other rolling slowly backwards.
 The plaintiff presented as a pleasant person. Her counsel submitted she was a good witness because, in effect, she stood her ground and insisted she had been injured; but that ground was also populated with many responses of not knowing and not recalling events. As for the mechanics of the injury, when impartial senses contradict what a witness with a vested interest says happened, as in this case, the former, depending on the all the circumstances, should hold greater sway.
 In Butler v. Blaylock Estate,  B.C.J. No. 31 (S.C.), McEachern C.J. stated at paras. 18-19:
 I am not stating any new principles when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury, and when complaints of pain persist for long periods extending beyond the normal or usual recovery period.
 An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence — which could be just his own evidence if the surrounding circumstances are consistent — that his complaints of pain are true reflections of a continuing injury.
 In this case, I find a lack of convincing evidence that this minor, slow-moving parking lot accident caused the plaintiff any compensable injury. Accordingly, the plaintiff’s claims for damages are dismissed with costs.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Gonopolsky v. Hammerson) deciding if a case which settled the day before trail for an amount in the Small Claims Court jurisdiction was reasonably brought in Supreme Court. The decision was relevant as the Plaintiff’s entitled to Supreme Court Costs rested on the outcome.
In finding there was “sufficient reason” to commence the proceedings in Supreme Court Mr. Justice Brown provided the following reasons:
 Considering the nature of the injuries, and the effects on homemaking and employment, I find there was a substantial possibility the damages could exceed $25,000.
 Further, the plaintiff submits other sufficient reasons to commence action in Supreme Court were the insurer’s denial of coverage because the forces were insufficient to cause injury; and because the plaintiff was allegedly a worker, which if proven and given the defendant was, would see the action statute barred pursuant to s. 10(1) of the WCA.
 Addressing reasons for commencing action in Supreme Court, plaintiff’s counsel states in her affidavit, sworn September 10, 2015, at paras. 8 and 9 as follows:
8. On November 5, 2012, I received a phone call from [the ICBC adjuster who] confirmed to me at that time that ICBC’s position was that [the plaintiff] was working at the time of the Collision, and that they would require a WCAT determination on that issue.
9. On December 14, 2012, our office filled the Notice of Civil Claim commencing this action. At the time of filing, I was of the view that examinations for discovery would be necessary because of ICBC’s position regarding worker-worker issue. Based on the medical-legal reports of Dr. Sawhney, I was also of the view that there was a real and substantial chance that [the plaintiff’s] claim was worth in excess of $25,000.
 As for the WCAT issue, the defendant argued it was not complicated and could have been determined in Provincial Court. As for the basics on that matter, I understand the plaintiff was working as a cleaner at the time. The driver was on her way to work. The plaintiff’s position was that she was going to be dropped off downtown and that she was not on the way to work that day. The defendant pointed out the plaintiff was not yet legally eligible to work in Canada and, accordingly, argued the plaintiff could not recover a wage loss in the first place, making WCAT issues moot. That could be argued at trial, had it got there. As it was, the defendant never withdrew the defence before trial and when the action was commenced, the plaintiff could not reasonably be expected to know how that defence would play out.
 The defendant’s position that the impact’s velocity was too low to cause an injury somewhat further complicated the case, would likely call for examinations for discovery, and at some juncture might entail an engineer’s opinion. It is unlikely the defendant would invest capital in that line of defence for this case, but it is reasonable to say the plaintiff’s burden on causation would be somewhat heavier than in a case where the force of the accident is not really in issue, which weigh in favour of a trial in this court.
 Ultimately, the $22,500 settled figure compensated only non-pecuniary damages.
 As similarly noted in Spencer at para. 24, the defendant’s positions effectively increased the complexity of the claim and the plaintiff’s need for counsel. “By denying liability, causation and that the plaintiff suffered any loss, the plaintiff would have been required to prove these elements at trial.” Further, at para. 25, “In taking the position that this was a low velocity impact claim the defendants created the situation giving rise to this motion. Their pleadings raised a multitude of issues in their defence. Those issues raised complex questions of fact and law. It is unlikely that a layperson could address them competently.” WCAT issues are sometimes simple. But for the plaintiff, it raised questions of mixed fact and law that raised another redoubt the plaintiff had to overcome.
 The gap between the $25,000 threshold for small claims actions and the $22,500 settled on for non-pecuniary damages is not very wide, unlike the large gaps seen in some cases. A host of factors influence a settlement, but the amount settled here is at least within shouting distance of $25,000. Although that somewhat suggests the initial decision to bring action in the Supreme Court was reasonably defensible, standing alone, that is not sufficient reason.
 In summary, the plaintiff has met the burden of proof required, albeit not by a large margin, but I am satisfied on balance that considering the potential damages that could be awarded for the plaintiff’s claim and the complications raised by the minimal damage and worker-worker defence, the plaintiff had sufficient reason to bring the action in the Supreme Court of British Columbia.
 The plaintiff is entitled to costs of the action and of the application at Scale B.
Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic neck injury caused by a motor vehicle collision.
In today’s case (Renaerts v. Renaerts) the 24 year old Plaintiff was injured as a passenger in a 2009 collision. She sustained a variety of injuries that made a quick recovery but also sustained a neck injury which remained symptomatic to the time of trial and had a generally guarded prognosis. In assessing non-pecuniary damages at $75,000 Mr. Justice Brown provided the following reasons:
 Given accepted evidence as a whole, I agree with Mr. Shew that rehabilitation should focus on healthy activity, core strengthening, and a guided exercise program. I do not see this form of therapy requires only one assessment, off you go, and good luck to you. A kinesiologist and properly trained fitness instructor would encourage the plaintiff to expand her functioning and strength within safe medical limits and increase her confidence. Further, the plaintiff would benefit from instruction from her family physician, at no cost, on how to make the most effective choice and use of pain medication. The plaintiff had consumed six to eight pills a day…
 In summary, while the plaintiff’s symptoms and limitations are likely to be permanent, and the general tenor of the opinions on prognosis is at best guarded, there are also reasonable grounds to expect that through strengthening exercises, increased activity, and appropriate use of the treatment modalities and the program just outlined, the plaintiff’s symptoms and level of functioning could see some improvement on a more sustained basis…
 Chronic mechanical back pain is her only really significant injury, as the others cleared up within a couple of months or so of the accident. The record shows that she made some improvement with chiropractic treatment and physiotherapy, but I agree with those medical opinions that have opined the emphasis should be on strengthening, fitness and suitable activities. I do not see chiropractic adjustments and physiotherapy and the assistance of a kinesiologist and fitness instructor as the means of a cure, rather, as the means of helping her progress, and through strengthening, building self-confidence, be better able to cope with her limitations and reduce them, to some degree. This is not a case where the plaintiff has had to give up on her recreational activities. She is capable of independent living, albeit, she will require some limited assistance with housekeeping, such as annual cleaning. I have made some allowance for loss of homemaking capacity; but in my view, considering the nature of her homemaking limitations, $5000 is a reasonable representation of her loss in that area.
 The plaintiff has sought to get on with her life to the best of her ability, with the encouragement of her friends, who amply attest to her limitations and the pain and limitations she has experienced. It is important to note that the plaintiff sustained these injuries at a time when she was somewhat vulnerable, not living at home, supporting herself and having to manage what was a fairly complex life and difficult set of responsibilities.
 I award the plaintiff $75,000 for non-pecuniary damages, inclusive of loss of homemaking capacity.
Reasons for judgement were released today ordering a Plaintiff to pay costs and post offer double costs after having his personal injury claim dismissed at trial.
In today’s case (Johnson v. Jamiesen) the Plaintiff was involved in a 2010 collision. Fault was disputed. In the course of the litigation the Defendant made an offer to settle the claim for $0 with both parties bearing their own costs to date. The Plaintiff proceeded to trial and the claim was dismissed. In finding that the ‘walk away’ offer ought to have been accepted and awarding double costs Mr. Justice Brown provided the following reasons:
 The plaintiff had in hand the defendant driver’s witness statement when he received the offer to settle. Six months later, the parties conducted examinations for discovery. The only witness called by the plaintiff was his girlfriend. He should have been aware of the reliability and shortcomings in her evidence by then. Further, following examinations for discovery, the plaintiff was positioned to see the perils of his position on liability.
 The defendants characterize their offer as a “walk-a-way” offer. While a nuisance offer may bear no real relationship to a plaintiff’s claim and not constitute an offer reasonably capable of acceptance, the court has recognized a walk-a-away offer may bear a realistic relationship to the plaintiff’s claim, reasonably capable of acceptance and, if rejected, justify an award of double costs, Riley, v. Riley, 2010 BCSC 822. In Riley, the court found the plaintiff possessed all the information the defendant intended to rely on at trial, which in this case, would be the evidence of the defendant driver. There were some potential accident witnesses at the scene potentially available to the plaintiff, but he could not call them because he and his girlfriend chose not to obtain any contact information from them, electing to go to a pub for a beer and to watch the hockey game.
 The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.
 See, besides Riley: Henry v. Bennett, 2014 BCSC 1963 at paras. 29 and 30; Houston v. O’Connor, 2011 BCSC 509 at para. 59; Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 [“Catalyst”]; Brooks v. Gilchrist, 2011 BCSC 56 at para. 16; and Bay v. Pasieka, 2014 BCSC 809 at para. 20.
 In Catalyst, Hall J. A. made this useful comment at para. 16:
 It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.
 I am not aware of any particular financial considerations. The plaintiff has not made submissions on costs.
 Accordingly, the defendants have an order for all costs of the proceedings at Scale B, up to and including May 15, 2012. For all the steps they took in the proceeding after the October 9, 2012 examinations for discovery, they are entitled to double costs.
Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a rollerblader and a vehicle.
In this week’s case (Chabot v. Shaube) the Plaintiff was rollerblading and entered an intersection in a marked crosswalk. She had the right of way. She passed 4 of 5 lanes when the Defendant motorist, who failed to see her, moved forward attempting a right had turn. A collision occurred. Despite having the right of way the Plaintiff was found 10% at fault for the collision due to her speed when crossing. In reaching this division of fault Mr. Justice Brown provided the following reasons:
 The defendant should not have rolled to a stop and proceed as she did, considering the traffic, the time of day and the marked crosswalk in front of her. Her passenger saw the plaintiff and called out a warning.
 As for the plaintiff, once she chose to skate across the intersection, she should have skated at a pace that slow enough to allow her to stop as quickly as if she were walking or at most slowly jogging, which is, for all practical purposes, instantaneously, after allowing a moment to see and react. In other words, she departed from the standard of care of a reasonable person in similar circumstances. By skating at a fairly brisk jog, she failed to exercise sufficient care for her own safety when crossing a busy intersection during morning rush hour at UBC…
 The plaintiff was not walking. She was travelling considerably quicker than a pedestrian walking. She does not have to guard against every conceivable eventuality, or to assume a vehicle in the designated right turn lane might not respect her right of way. Only, considering the circumstances, to be more vigilant and to take reasonable precautions for her own safety, considering she was skating across the intersection, could not see traffic on the other side of the bus and could not stop as quickly as she could on foot.
 The law does not declare the plaintiff broke the law by skating across the crosswalk. Cyclists are obligated to dismount when they enter a crosswalk, see s. 183(1)(b) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318. But the Motor Vehicle Act does not include roller blades in its definition of “cycle”, see s. 119(1) “cyclist”; they are pedestrians. Further, I appreciate inline skating is a popular way to get around in good weather. Some road skaters appear very adept and agile skaters. I accept the plaintiff was an experienced skater and that she knew how to stop properly on skates. She was not obliged to remove her skates to cross. But having chosen to skate across the crosswalk, she needed to take reasonable precautions for her own safety, commensurate with her speed and visibility of traffic beyond the stopped bus.
 As noted in Karran, “fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.” I find the plaintiff’s conduct falls within the range of a momentary or minor lapse of conduct, which nevertheless, carries with it the risk of foreseeable harm. Based on this finding, and the circumstance that she was always within a marked crosswalk, I apportion 90% fault to the defendant and 10% to the plaintiff.
A short but interesting exchange can be found at the end of reasons for judgement recently published by the BC Supreme Court, Chilliwack Registry, discussing loser pays costs and a Plaintiff’s financial circumstances.
In the recent case (Hunstad v. Cormier) the Plaintiff was injured when her bicycle was involved in a collision with the Defendant’s vehicle. She sued for damages but her claim was dismissed at trial. The Defendant sought costs but the Court declined to award these given the Plaintiff’s financial circumstances. This is an interesting development because while the financial position of parties can be considered if a formal offer has been made, it has been held that it is an irrelevant consideration in the normal course. The below brief exchange, while arguably not conclusive as it is not a final order, can arguably be used to open the door to financial hardship as a factor when considering BC’s ‘loser pays’ costs consequences:
 MR. KENT-SNOWSELL: Costs, My Lord?
 THE COURT: I am not going to order costs because of Ms. Hunstad’s financial situation. If you want to make some submissions on that, I will consider it, but I don’t think they are appropriate in the circumstances.
 MR. KENT-SNOWSELL: I will seek instructions.
 THE COURT: Thank you.
As previously discussed, if you are insured with ICBC the amount of Part 7 Benefits that you are entitled to must be deducted from tort trial damages due to the operation of section 83 of BC’s Insurance (Vehicle) Act. This deduction can be made even if you don’t apply/receive your Part 7 benefits.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing this deduction with respect to various damage awards made at trial. In this week’s case (Cikojevic v. Timm) the Plaintiff was awarded significant damages at trial after sustaining a permanent brain injury in a collision. This week’s supplemental reasons for judgement are worth reviewing for the Court’s discussion of deductibility of the following items:
- massage therapy
- chiropractic treatments
- occupational therapy
- psychological counselling
- speech therapy
- vocational counselling
- transportation costs
(Update – April 19, 2013 – The below decision should be cross-referenced with reasons for judgement released today (Gonzales v. Voskakis) where Madam Justice Fitzpatrick came to a different conclusion)
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, confirming that the Court cannot award double disbursements following a trial where a formal settlement offer was bested.
In this week’s case (Moore v. Kyba) the Plaintiff was awarded substantial damages in a jury trial following a motor vehicle collision. The damages awarded exceeded both the Plaintiff’s and Defendant’s pre-trial formal settlement offers. The Plaintiff brought an application seeking double costs and double disbursements. Mr. Justice Brown held that while it was appropriate to award double costs, Rule 9-1 does not go so far as to give the Court authority to award double disbursements. Mr. Justice Brown provided the following reasons:
I am not convinced by the applicant’s argument. The repeal of the definition relied on in Browne v. Lowe is not determinative and does not require its reversal. In any event, I conclude that the proper interpretation of Rule 9-1(5) does not permit the Court to award double disbursements. In Rule 9-1(5)(a), the rule specifically provides for disbursements, while Rule 9-1(5)(b) does not. Therefore, properly interpreted, Rule 9-1(5)(b) does not permit the Court to award double disbursements after the delivery or service of the offer to settle.
In keeping with the ongoing trend of judicial criticism of ICBC’s ‘low velocity impact‘ defence (you can click here to access dozens of my archived posts detailing this) reasons for judgement were released earlier this week by the BC Supreme Court, New Westminster Registry, confirming that while defendants are free to put evidence of minimal vehicle damage before the court, it likely is not a significant consideration.
In this week’s case (Gron v. Brown) the Plaintiff was involved in two rear-end collisions, the first in 2003, the second in 2008. ICBC admitted fault on behalf of the rear drivers. Both collisions were low velocity impacts. ICBC stressed this evidence at trial. Mr. Justice Brown found that despite the low impact of the crashes the Plaintiff did suffer injury. The Court awarded $24,000 in non-pecuniary damages and provided the following practical critique of low velocity impact evidence:
 The defendants called two ICBC estimators, Mr. J. Hansen and Mr. J. Gali. Following the May 31, 2008 accident, they examined damage to the plaintiff’s Toyota Yaris and Mr. Godwin’s Oldsmobile Cutlass Ciera.
 Mr. Hansen, who examined the Yaris, noticed some minor damage on the Yaris’s bumper cover and slight sheet metal distortion on the Yaris’s trunk lid.
 Mr. Gali, who examined the Oldsmobile, found minor damage to the strip moulding on its bumper. Mr. Godwin did not want to have it repaired.
 Neither estimator looked under the bumpers for damage, which, they granted, possibly could have been present.
 Low velocity impacts are common. Defendants often question the relationship between minimal vehicular damage and physical injuries claimed after low velocity impacts. In the case at bar, neither of the estimators ventured an opinion on the inherent potential for injury from the minimal physical damage they found after examining the vehicles nor claimed the expertise to do so, but as noted by Vickers J. at para. 15 in Kirsebom v. Russell,  B.C.J. No. 359 (S.C.), the defendants are “entitled to argue in this or any other case that, because there has not been motor vehicle damage, there can be no injury.”
 Barrow J. endorsed this view in Makara v. Weihmann, 2005 BCSC 1757, where he said at para. 7:
 I share this view. It follows that the extent of the damages to motor vehicles involved in a collision may well be relevant notwithstanding an admission of liability where the remaining issues make it so. In this case, the issues include whether the plaintiff suffered the injuries complained of in the accident or elsewhere. They include an assessment of the extent of the injuries generally. The nature of the collision is a relevant consideration in resolving these matters. It may not be a significant consideration, but it remains a relevant one. …