Tag: Rule 18A

Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?


When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.
Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.

Rule 18-A and Your ICBC Injury Case

One of the tools in a BC Trial Lawyers arsenal is BC Supreme Court Rule 18-A.
Rule 18-A permits claims to proceed to court via ‘summary trial’.   In summary trials no live witnesses are called, instead the evidence is put before the Judge by way of affidavit evidence.  From there the lawyers make their submissions and a ruling is made.  By this method the time, and therefore the cost, of trial can be cut down significantly.  
Rule 18-A is, however,  not without its shortcomings.  Without live witnesses taking the stand and getting faced down by a judge or jury it is difficult to weigh credibility.  Where there are 2 different sides to the story and credibility plays a central role Rule 18-A is usually not an appropriate way to proceed to trial.
In personal injury litigation the credibility of the Plaintiff is usually a key issue at trial and for this reason Rule 18-A is rarely used.  That said, this rule can be effective for certain ICBC and other personal injury claims and reasons for judgement were released today by the New Westminster Registry of the BC Supreme Court illustrating this fact.
In today’s case (Smith v. Bhangu) the Plaintiff was injured when she was 14 years old in a BC Car Crash.  The issue of fault was admitted.  This left the issue of quantum of damages (value of the ICBC case) to be decided by the trial judge.
Both lawyers agreed that Rule 18-A was appropriate for this case.  The Plaintiff;s MRI showed a herniated lumbosacral disc injury.  There was no dispute that the Plaintiff suffered from this condition, rather the key issue was whether the Plaintiff’s herniated lumbrosacral disc was related to the car accident.  In agreeing that it was, Mr. Justice Grist made the following findings:

[21]            I am satisfied that the evidence provides, on a balance of probabilities, a causal link between the motor vehicle collision and the lower back condition. I accept the Plaintiff’s evidence that the lower back complaints presented after a period of weeks or months from the motor vehicle collision and that there were no prior or subsequent events causing or contributing to the condition. Further, I accept that following the initial visit to the doctor, she did not present these continuing complaints for medical treatment until lower back spasms developed in 2004 and 2005. I also note Dr. Hershler’s comment that, based on the history and his physical examination, both the neck and lower back symptoms were referable to the motor vehicle collision.

[22]            The upper back condition continues to be symptomatic from time to time, but as in many cases, has shown improvement, and the overall effect of the assessments in the medical reports is an expectation of further progress.

[23]            The lower back condition, however, is more of a problem. The MRI shows a herniated lumbrosacral disk which continues to cause episodes of back pain, sometimes debilitating to the point of prompting attendance at an Emergency Ward. I accept that at age 14, this was not likely a degenerative condition and, as I have previously indicated, on the evidence, is most likely attributable to the collision.

General damages (money for pain and suffering and loss of enjoyment of life) were assessed at $65,000 and a further $80,000 was awarded for the Plaintiff’s diminished earning capacity to reflect the fact that her chronic condition will likely effect her vocationally over her lifetime.
What is remarkable about this case is that the trial took only one day.  Often times when ICBC Claims with serious injuries proceed to trial the process takes numerous days or even weeks.  Rule 18-A permitted this case to be adjudicated with one day of court time with costs savings to both parties.
While Rule 18-A is inaproppriate for many personal injury claims, this case shows that it can be used effectively in certain circumstances.  When prosecuting an ICBC injury claim this rule should not be automatically brushed aside and should be considered in appropriate circumstances.

Botox Injections for Rehabilitation and ICBC No-Fault Benefits

You are insured with ICBC and are injured in a BC Car Accident.  You experience chronic pain and your doctor tells you that you will likely benefit from Botox Injections to aid in your rehabilitation.  Botox treatment is expensive, so you apply to ICBC to have this covered under your No-Fault Benefits (sometimes referred to as Part 7 benefits).  ICBC tells you, “sorry, Botox treatment for injury is not covered under Part 7.” Are they right?  Wrong.
Reasons for judgment were released today by the BC Supreme Court ordering that ICBC cover the expenses associated with a Plaintiff receiving Botox treatment.
The Plaintiff was injured in a 2005 BC car crash.  The Plaintiff applied for and received previous funding for various treatments of injuries from ICBC.  The Plaintiff then saw a rehabilitation specialist who recommended Botox injections.  The cost of these was expected to be $3,500.  ICBC, without a contrary medical opinion as to the reasonableness of this treatment, failed to fund it and took the position that this expense did not have to be covered.
Section 88 (1) of the Insurance (Vehicle) Regulation deals with ICBC’s no-fault medical and rehabilitation benefits and requires that ICBC cover all reasonable expenses incurred by the insured as a result of the injury for necessary services, therapy or treatment as set out in the Regulation.
Justice Macaulay, in very well thought out reasons for judgment, ordered that ICBC had to pay for the Botox injections in the circumstances of this case.  The key reasoning in the judgment can be found at paragraphs 33 – 40 which I will publish as soon as the judgement is released on the BC Court’s website.
This case is also very interesting to me from a procedural point of view.  The Plaintiff brought this application by way of summary trial under Rule 18-A.  The Plaintiff relied on his affidavit and a medico-legal report.  ICBC did not have the opportunity to cross examine the Plaintiff or the treating doctor and typically litigants are entitled to do so.  ICBC took the position that this application should not be heard until they had the chance to cross-examine.
Mr. Justice Macaulay disagreed with ICBC and allowed the application to proceed.  He ruled that “There is nothing to be gained by directing cross examination of either the doctor or the Plaintiff.  The doctor makes it clear that she recommends this treatment as one of several options because the plaintiff’s lower back problems have been intractable.  It is primarily a legal issue whether that is sufficient to trigger an obligation on ICBC under s. 88(1).  There is also no reason to expect that the cross examination of the plaintiff will result in any alteration of the evidence…cross examination will not be ordered [in Rule 18A summary trials] absent some likelihood that the procedure will produce evidence in support of the other side…I am satisfied that the proposed cross-examination of the plaintiff and his doctor are speculative and not likely to produce evidence in support of ICBC.

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!”
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