Tag: Mr. Justice Smith

More on ICBC Injury Claims and Breach of Insurance

I’ve written many times about the potentially steep financial consequences of being in breach of an ICBC Policy when an injury claim is made.
A frequent type of breach relates to misrepresenting who the principal operator of a vehicle is.   Reasons for judgement were released today demonstrating some of the consequences that occur when this type of a misrepresentation is knowingly made.
In today’s case (Deters v. Totovic) the Plaintiff was involved in a 2003 BC Car Crash.  She sued the owner and driver of the other vehicle involved (a mother and daughter respectively).  ICBC refused to provide coverage to the defendants claiming that they misrepresented who the principle operator of the vehicle was when they purchased their policy of insurance.  A Motion was brought before the BC Supreme Court asking the judge to decide if there was a misrepresentation at the time and therefore a breach of insurance.
Mr. Justice Smith decided that the Defendants did knowingly misrepresent who the principal operator of the vehicle was when purchasing insurance from ICBC.  A a result he held that the Defendants lost their right to indemnity from ICBC.
Mr. Justice Smith succinctly summarized the law relating to breach of insurance for principal operation misrepresentation as follows:

[5] Section 19(1)(b) and (e) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 [Act], as it was in force in 2003, said:

19 (1) If…

(b) an applicant for an owner’s certificate or driver’s certificate knowingly misrepresents or fails to disclose in the application a fact required to be stated in it,…

(e) an insured makes a willfully false statement with respect to a claim under a plan,

all claims by or in respect of the applicant or the insured are rendered invalid, and his or her right and the right of a person claiming through or on behalf of or as a dependant of the applicant or the insured to benefits and insurance money is forfeited.

[6] The regulations to the Act (now called the Insurance (Vehicle) Act) define the principal operator as “the person who will operate the vehicle described in an application for a certificate for the majority of the time the vehicle is operated during the term of the certificate.”

[7] The burden of proving that the insured knowingly misrepresented a material fact is on the insurer. The standard of proof is the civil standard of balance of probabilities. The question of whether or not there has been a knowing misrepresentation is to be determined on the basis of the circumstances that existed at the time the policy of insurance was issued:  Booth v. ICBC, 2009 BCSC 1346 at paras. 7-9.

Mr. Justice Smith pointed out that if the vehicle was insured with the daughter as the principal operator “the insurance would have cost approximately four times what was actually paid”.

The Court went on to make the following finding:

[28] In short, all of the evidence supports the inference, on the balance of probabilities, that (the Daughter) was, in fact, the principal operator of the vehicle during the period covered by the insurance certificate and was using it extensively for work purposes. That finding in itself does not necessarily mean that there was a breach of the insurance coverage because the question is whether or not there was a knowing misrepresentation at the time the policy of insurance was issued.

[29] At the time the policy of insurance was issued on June 25, 2003, (The Daughter) had been working in the T&F Sales job for approximately two months. The circumstances around the time the insurance policy was issued indicate that (the Mother) had to have known that (the Daughter) would be the principal operator of the Mazda—she needed it on a daily basis for her job. Therefore, I find that on the balance of probabilities, Smilja made a misrepresentation when she declared herself to be the principal operator in June 2003…

[31] I therefore find that there was a misrepresentation within the meaning of the Act and therefore the defendants’ right to indemnity for the plaintiff’s claim is forfeited pursuant to s. 19 of the Act. ICBC is also entitled to costs of this action.

What this ruling means, in practical terms, is that if the Plaintiff is successful in her lawsuit, ICBC would pay the judgement to the Plaintiff and then come after the Defendants personally for the damages they had to pay.  Depending on the severity of the claim the consequences could be anywhere from thousands to millions of dollars.  This case shows yet again that the short term financial advantages that can come with principal operator misrepresentation are far outweighed by the financial consequences of being in breach of a policy of insurance.

Driver Found at Fault for Crash for Having High Beams On – Psychological Injuries Discussed

Interesting reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with the issue of fault in a BC Car Crash, specifically if a driver could be found at fault for having high beams on making it difficult for other motorists to see.
In today’s case (Scott v. Erickson) the Plaintiff was injured when she drove her vehicle off a road and over an embankment in southeastern British Columbia.  Before losing control the Plaintiff was driving a pick up truck Southbound on the highway.  At the same time the Defendant was driving Northbound on the same highway and crossed the road to stop at the community mailboxes in a pullout adjacent to the southound lane.  While retrieving his mail his SUV was off the road to the right of the Plaintiff’s lane of travel.
The Defendant’s vehicle was facing the Plaintiff’s with its high-beams on.  The Plaintiff thought the Defendant’s vehicle was in the oncoming lane so she tried to keep to the right of the Defendant’s vehicle.  Of course there was nothing but an embankment to the right of the Defendant’s vehicle and the Plaintiff’s vehicle flipped down into the ditch. Mr. Justice Smith found the Defendant 100% at fault for this collision.  In coming to this conclusion Mr. Justice Smith reasoned as follows:

The question is whether the defendant was in breach of the common law duty of care that he owed to other drivers in the circumstances. It is trite law that, apart from specific statutory provisions, every operator of a motor vehicle owes a common law duty to take reasonable care for the safety other users of the highway.  What constitutes reasonable care in a given case depends on what is reasonable in the circumstances.

[25] Those circumstances included the fact that, although he was not parked on the roadway, the defendant knew or should have known that he was close enough to it that his headlights to be visible to oncoming traffic. He also knew or should have known that there were no streetlights or other sources of light that would help oncoming drivers determine the position of his vehicle.

[26] In those circumstances, it was reasonably foreseeable that an approaching driver seeing the defendant’s headlights would assume they were the lights of an oncoming vehicle in the northbound lane and would attempt to ensure that she stayed to the right of that vehicle….

I find that if the defendant had properly turned his mind to the potential hazard he was creating, the proper course would have been to turn off his headlights. If the absence of light from his headlights would have made it more difficult for the defendant to find and open his mailbox, that problem could have been solved with the simple use of a small flashlight.

[29] The hazard created by the defendant in stopping as he did was aggravated by the fact his lights were on high beam, further interfering with the ability of the plaintiff to properly see and assess the situation…

I find that, by leaving his lights on high beam, the defendant was in further breach of his common law duty of care. Whether or not he was stopped on a portion of the highway, the defendant clearly knew or ought to have known that he was stopped close enough to the travelled road surface that his headlights would be shining toward oncoming drivers and the vision of those drivers could be impaired if the lights were on high beam.

[33] I therefore conclude that, in stopping his car in the position he did with his headlights not only illuminated but on high beam, the defendant breached his duty of care.

In addition to the rather unique circumstances of liability, this case is worth reviewing for the Court’s discussion of quantum of damages.

Mr. Justice Smith found that the Plaintiff suffered from fairly “minor” physical injuries.  Despite this she went on to suffer from various cognitive difficulties.

The Plaintiff alleged these were due to a brain injury.  Mr. Justice Smith concluded that no brain injury occured in the crash, instead the Plaintiff’s cognitive difficulties were due to a ‘psychological response‘ to the accident.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $85,000 Mr. Justice Smith noted that while a brain injury did not occur, brain injury precedents were useful guides in valuing the Plaintiff’s loss as her diminished functioning mirrored post concussive symptoms in many ways.  Specifically Mr. Justice Smith noted as follows:

[107]     The plaintiff has suffered a persistent psychological reaction to her accident, which has clearly affected her ability to function as she once did in both social and professional settings. She has difficulties with memory and concentration, has difficulty functioning in groups and has suffers from a lack of energy and confidence. She is, in important respects, no longer the person she was and is unable to enjoy most aspects of life as she previously did. However, I have found that she does not have any organic brain injury and her condition is more likely than not to be treatable with the proper interventions.

[108]     Although I did not find the plaintiff to have mild traumatic brain injury or post-traumatic stress disorder, the impact that her psychological condition has had on her life is in many ways similar to what is seen in cases involving those conditions. Those cases therefore can provide some useful guidance in assessing damages…

[112] I have considered those and other cases referred to, but of course each case must be decided on its own facts and on the need to compensate that plaintiff for pain, suffering, and loss of enjoyment of life. The accident in this case has had psychological consequences that have, to date, significantly interfered with the plaintiff’s enjoyment of life, her ability to function in both social and occupational settings, and her general sense of self worth. On the other hand, the plaintiff’s physical pain and suffering were short-lived, she has failed to prove that she suffered an organic brain injury, and the condition she has proved is one from which she is likely to fully recover with proper treatment. Taking all of those factors into account, I find $85,000 to be an appropriate award for non-pecuniary damages.

More on Low Velocity Impacts and a Legal History Lesson

Yet another “Low Velocity Impact” Injury Claim went to trial and yet again the Court found that a compensable injury existed despite the minimal vehicle damage.
In today’s case (Bourdin v. Ridenour) the Plaintiff was involved in a 2005 Car Crash in Kamloops, BC.  This was a crash that apparently fell into ICBC’s LVI Program as the minimal amount of vehicle damage was stressed at trial by the defence lawyer (the Plaintiff’s vehicle damage cost only $316 to repair). Despite this Madam Justice Hyslop found that the Plaintiff was injured in the crash.  In valuing the Plaintiff’s non-pecuniary damages at $22,500 the Court summarized the Plaintiff’s injuries as follows:

[87] Ms. Bourdin had constant pain for approximately five months after the accident.  However, she acknowledged some improvement during that period.  She was plagued with headaches, the severity of which she had never experienced before.  Dr. Vlahos’ clinical records note that Ms. Bourdin, on February 8, 2008, complained of having a “…new onset of headaches.  Head feels like it is in a vise”.  This description is a similar description of the headaches Ms. Bourdin suffered as a result of the motor vehicle accident.

[88] I do accept that Ms. Bourdin suffered from headaches and that they occurred as a result of the accident.  She has been nauseous and vomited with such headaches, the last of which was two weeks before this trial.  According to Ms. Bourdin, headaches of this nature occurred after the accident.  However, Ms. Bourdin did not describe headaches of this nature to either Dr. O’Farrell or Dr. Travlos.

[89] Ms. Bourdin’s neck, shoulder and mid-back were injured as a result of the accident.  She continues to suffer pain from these injuries today, but they are occasional.  At trial, Ms. Bourdin stated that her neck and shoulder pain are now triggered when she is reaching for something, and sometimes everyday events caused neck and shoulder pain without explanation.  She acknowledged improvement in the spring of 2006 and that this has been ongoing from 2006 to the date of trial.  Her chiropractors, her massage therapists and her comments to Dr. O’Farrell and Dr. Travlos confirm this.  She told Dr. O’Farrell that at the time he examined her, her pain was intermittent.

In discussing the LVI Defence to Injury Claims Madam Justice Hyslop quoted a 2006 case (Jackman v. All Season Labour Supplies Ltd.) in which Mr. Justice Smith of the BC Supreme Court pointed out that the LVI defence is not a principle of law but rather “a creature of policy created by ICBC“.  Specifically Mr. Justice Smith held

[12]      On the issue of vehicle damage, I note the comments of Madam Justice Ballance in Robbie v. King 2003 BCSC 1553, at paragraph 35:

The proposition that a low velocity accident is more or less likely to have a propensity of injury is a creature of policy created by ICBC. Although lack of impact severity is by no means determinative of the issue as to whether a person could have sustained an injury, it is nonetheless a relevant consideration particularly with respect to soft tissue injury. Ultimately, the extent of Ms. Robbie’s injuries are to be decided on the evidence as a whole.

[13]      Although lack of vehicle damage may be a relevant consideration, it has to be balanced against the evidence of the plaintiff and the medical evidence, including the complete lack of any medical evidence to support the assertion that the injuries are inconsistent with vehicle damage.

Now for the legal history lesson:

While it is well accepted by BC Courts that ICBC’s LVI Policy is not a legal defense to a tort claim, rather, vehicle damage is just “a relevant consideration” ICBC Defence Lawyers often quote a 1982 case from the BC Supreme Court (Price v. Kostryba) in which Mr. Justice McEachern quoted another BC Supreme Court decision (Butlar v. Blaylock) in which the Court held that:

I am not stating any new principle 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…

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 contuining injury.

However, this often cited quote comes from a case that was overturned on appeal.  In 1983 the BC Court of Appeal overturned the trial decision of Blaylock and held as follows:

12 With the greatest respect, I am of the opinion that there is no evidence upon which one could reasonably conclude that the appellant did not continue to suffer pain as of the date of the trial. After careful consideration of the expert testimony and the evidence of the appellant and his wife, I have reached the conclusion that the only finding open to the learned trial judge was that as of the date of trial the appellant continued to suffer moderate pain and in the words of Dr. Lehmann, his symptoms “will gradually subside with further time. Having been present for approximately two and a half years, it is doubtful that they will disappear completely.” (underlining mine).

13 There are three basic reasons which, in my view, support the conclusion that the plaintiff continued to suffer pain as of the date of trial. Firstly, the plaintiff testified that he continued to suffer pain. His wife corroborated this evidence. The learned trial judge accepted this evidence but held that there was no objective evidence of continuing injury. It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the Plaintiff is entitled to recover damages. There is no suggestion in this case that the pain suffered by the plaintiff did not result from the accident. I would add that a plaintiff is entitled to be compensated for pain, even though the pain results in part from the plaintiff’s emotional or psychological makeup and does not result directly from objective symptoms.
14 Secondly, all of the medical reports support the view that the plaintiff continued to suffer pain and that it was not likely that his symptoms would disappear completely.

15 Thirdly, and of great importance, is the report of Dr. Lehmann, which was not before the learned trial judge for his consideration. In that report, Dr. Lehmann stated that there were degenerative changes in the cervical spine which pre-existed the accident. He said “they were probably asymptomatic before the accident but I think are probably contributing to his prolonged discomfort.” (underlining mine). In my view, as this evidence is uncontradicted, these objective findings cannot be disregarded and should be given great weight.

I hope this ‘history lesson’ helps anyone confronted with ICBC’s LVI Program denying a tort claim because of little vehicle damage.

  • 1
  • 4
  • 5

Contact

If you would like further information or require assistance, please get in touch.

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer