Tag: Schnare v. Roberts

More on Rule 66, Rule 37B, ICBC Claims and Costs

Written by admin on May 19, 2009. Posted in Civil Procedure, Uncategorized. 42 Comments on More on Rule 66, Rule 37B, ICBC Claims and Costs

Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision. The Plaintiff sued for damages under Rule 66. The Plaintiff made a formal offer of settlement and ICBC did not accept it. The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer. (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences. ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66. Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs. Madam Justice Adair reasoned as follows:

[13] Sub-rules (29) and (29.1) of Rule 66 provide (italics added):

(29) Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day or less, $5 000;

(b) if the time spent on the hearing of the trial is more than one day, $6 600.

(29.1) In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

Rules 37 and 37A have been repealed and replaced with Rule 37B.

[14] In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66. By October 2008, the parties themselves realized that two days would not be sufficient for trial. Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence). Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed. I did not consider counsel were inefficient in their use of time. I am satisfied that the length of the trial itself constitutes “special circumstances” in this case. See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6^th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.

[15] In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.

The second issue worth noting were the costs consequences under Rule 37B. The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward. Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:

19] Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided? Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6^th) 291, at para. 24. Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial.

[20] The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness. However, there were serious risks in that strategy. Dr. McPherson was very closely tied to ICBC, and had been for over a decade. This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson. As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert. Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court. His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare. As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own. In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle. The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial. A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided. This factor supports the plaintiff.

[21] The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer. This factor also supports the plaintiff.

[22] With respect to the relative financial circumstances of the parties, I consider this factor neutral.

[23] Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.

Can Future Wage Loss be Awarded in an ICBC Claim When There is no Past Wage Loss?

Written by admin on March 28, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Wage Loss, Uncategorized.

The answer is yes and reasons for judgement were released yesterday (Schnare v. Roberts) by the BC Supreme Court illustrating this fact. In yesterday’s case the BC Supreme Court awarded the Plaintiff just over $240,000 in total damages as a result of a 2005 BC Motor Vehicle Collision.
The Plaintiff was a school teacher and was on her way to school when her vehicle was rear-ended. The crash was significant enough that the Plaintiff’s vehicle was pushed into the vehicle in front of hers.
The Plaintiff suffered various injuries and these and their effect on the Plaintiff’s life are summarized at paragraphs 56-57 as follows:

[56] Based on the evidence of Ms. Schnare, Dr. Fagan, Mr. McLean and Dr. van Rijn, I conclude that, in the accident on March 14, 2005, Ms. Schnare suffered soft tissue injuries to her neck, upper, mid and lower back, including in and around her sacroiliac region. As a result of the injuries, Ms. Schnare was left with a mobile sacroiliac joint. I conclude further that the defendants’ negligence caused Ms. Schnare’s injuries. While, as of the trial, Ms. Schnare had occasional neck pain attributable to the accident, I find that the most serious result of the injuries Ms. Schnare suffered in the accident has been the mobility in her sacroiliac joint, the pelvic misalignment and rotation, and the associated back pain. The pelvic rotation was observed and identified (by Mr. McLean) at Ms. Schnare’s first physiotherapy assessment on March 31, 2005 (approximately two weeks after the accident). Dr. van Rijn’s examination disclosed that Ms. Schnare had a mobile right sacroiliac region and he identified Ms. Schnare’s sacroiliac region as the probable pain generator and source of Ms. Schnare’s back pain.

[57] I find that, as a result of her injuries, Ms. Schnare continues to suffer some neck pain and significant back pain, and that this pain – particularly her back pain – limits and interferes with most normal and routine activities of her daily life. Based on the evidence, particularly from Mr. McLean, Ms. Schnare’s condition has improved since the accident, as a result of physiotherapy and Ms. Schnare’s own efforts. However, I accept the opinion of Dr. van Rijn and conclude that Ms. Schnare’s accident-related symptoms caused by her injuries have resulted in some permanent disability.

In justifying an award for non-pecuniary damages (pain and suffering) for $85,000 the Court highlighted the following facts:

Ms. Schnare’s injuries have had a very significant effect on the quality of Ms. Schnare’s life. She has back pain regularly, and from time to time flare-ups of severe pain; she fatigues easily; she is unable to enjoy activities such as hiking or car trips with her family; she is unable to participate in her children’s activities (including homework and sports) in the manner and to the degree she would like; household chores are more difficult; she feels like a spectator on family activities, rather than involved and engaged; her intimate relationship with her husband has changed; and her strong desire to pursue a career as a kindergarten teacher has been frustrated.

[63] Taking into account in particular Ms. Schnare’s evidence, the evidence of Mr. Schnare, Ms. Schultz and Ms. Brebuck concerning Ms. Schnare’s circumstances before and after the accident, and the opinions stated by Dr. van Rijn, I conclude that an award of $85,000 is appropriate in the circumstances.

From there the court went on to discuss the law of diminished earning capacity (future wage loss). Despite only having a minimal past wage loss the Court awarded the Plaintiff $125,000 for diminished earning capacity. In doing so the Court summarized and applied the law as follows:

[64] The principles governing a claim for loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158. There, the court confirmed that, “Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation. What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.” The standard of proof to be applied when evaluating hypothetical, future events that may affect an award is simple probability, not the balance of probabilities. Huddart J.A. continued:

10. The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence: Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31;Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

1. whether the plaintiff has been rendered less capable overall from earning income from all types of employment;

2. whether the plaintiff is less marketable or attractive as an employee to potential employers;

3. whether the plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him, had he not been injured; and

4. whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

11. The task of the court is to assess damages, not to calculate them according to some mathematical formula: Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued. . . . The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[65] Ms. Schnare seeks damages in the sum of $345,600 for lost earning capacity. This sum is based on a full-time salary of $64,000 per year; on the assumption that, because of her injuries, Ms. Schnare is permanently unable to work more than 4 days per week; and on the further assumption that, but for her injuries, she would begin teaching full time in about 2010 and continue until age 65, a period of 27 years (20% of $64,000 = $12,800 multiplied by 27 years = $345,600).

[66] When Ms. Schnare worked a full-time week in the fall of 2008, she determined that she could not keep it up, and that she needed the one day a week to recuperate. Other than that one week, Ms. Schnare last taught full time during the school year September 2000 to June 2001. At that time, the Schnares’ daughter was about two, and Ms. Schnare was pregnant with their son. As noted above, the Schnares has discussed Ms. Schnare returning to work full time when their daughter entered grade 7. Of course, that Ms. Schnare would in fact have returned to work full time once her daughter entered grade 7, but for the accident, is not a certainty.

[67] Dr. van Rijn addressed the topic of Ms. Schnare’s potential “occupational restrictions” in his June 5, 2008 report. He noted Ms. Schnare’s plans to move to grade 1, rather than teaching kindergarten, and observed that “some of the job requirements (including sitting on the ground) may not be as necessary, which will hopefully allow her to manage more easily.” He continued (italics added):

She has permanent restrictions with respect to jobs requiring increasing physical effort and would be competitively unemployable in such work when compared to an able-bodied woman with similar interests and skill sets. This represents a permanent loss in her work capability and has caused her to suffer a work handicap as a result of her injuries. She is potentially less desirable an employee to perspective employers as a result of her accident related symptoms.

[68] However, Dr. van Rijn does not say anywhere in his report that Ms. Schnare would be unable, because of her injuries, to work full-time as a teacher. I compare what Dr. van Rijn says with the evidence referred to in Fox v. Danis, at para. 97, where the court had the benefit of opinion evidence to the effect that the plaintiff had lost the capacity to work full-time. While Ms. Schnare may have restrictions, and therefore be less employable or “competitively unemployable,” with respect to “jobs requiring increasing physical effort,” Dr. van Rijn does not identify teaching grade 1, or indeed teaching any particular school grade, as a job of this type. In addition, there is no evidence that Ms. Schnare has ever considered any type of work other than teaching.

[69] I consider that the approach taken by Ms. Schnare with respect to damages for loss of earning capacity is excessively mathematical. In my view, it seeks to have Ms. Schnare compensated as if it were certain that she would never work full-time again, and her approach produces a result that, overall, is neither fair nor reasonable, taking into account all of the evidence. On the other hand, based on the evidence, I do not accept the defendants’ submission that Ms. Schnare should receive no award for loss of capacity to earn income.

[70] In my view, based in particular on Ms. Schnare’s evidence and on the opinions stated by Dr. van Rijn in his June 5, 2008 report, Ms. Schnare has suffered some impairment of her earning capacity as a result of her injuries. She has been rendered less capable overall from earning income from all types of employment available to an individual qualified as a teacher, and she has lost the ability to take advantage of all job opportunities that might otherwise have been open to her had she not been injured. Specifically, Ms. Schnare has lost the ability to take advantage of the opportunity to work full-time as a kindergarten teacher, taking into account the physical demands of that job. On the other hand, I do not consider that the evidence supports the conclusion that, as a result of her injuries, Ms. Schnare has lost the ability generally to take advantage of opportunities to work full-time as a teacher, should she choose to do so in the future. In that light, the difference between Ms. Schnare’s likely future income had the accident not occurred and her income now that the accident has occurred may well be small.

[71] Accordingly, Ms. Schnare is entitled to damages, but the amount should be more modest than what her counsel has submitted. I conclude that the damages for Ms. Schnare’s loss of earning capacity should be assessed at $125,000.