ICBC Law

Reasons for judgement were released today awarding a Plaintiff $21,500 for pain and suffering plus ’special damages’ (accident related out of pocket expenses) as a result of a 2005 motor vehicle collision.

While the judgement does not mention ICBC directly (BC personal injury tort judgements rarely mention who the insurer for the defendant is) this case appears to me to be one which was defended on the basis of ICBC’s Low Velocity Impact (LVI) program.  The reason why I reach this conclusion is because the defence lawyer argued that “this was such a minor motor vehicle accident that no damages should be awarded”.  This is a standard argument behind ICBC’s LVI program.

The accident did not occur at a significant rate of speed and resulted in little vehicle damage.  The Plaintiff’s vehicle cost approximately $1,500 to repair.

The Plaintiff’s injuries are discussed at paragraphs 5-16 of the reasons for judgement which I reproduce below:

[6]                She described her symptoms as significant pain in her wrist, pain in her neck, shoulders, lower back, and a small amount of pain in her jaw. 

[7]                The doctor told her to “take it easy”.  She went home and put an ice pack on her wrist and shoulders. 

[8]                The pain in her wrist resolved within a month of the accident.  The pain in her neck lasted for approximately a year and a half.  Massage therapy helped with the pain in her neck; she developed better range of motion.

[9]                She also began to experience headaches which resolved within a year and a half of the accident.

[10]            The muscles in her jaw tightened and she experienced pain.  She described the jaw pain starting after the accident as minor, though it continued to get worse.  She still has some symptoms of jaw pain but it has improved with the use of a night guard.

[11]            Three weeks after the accident she developed chest pains.  She first noted the chest pains when she was jogging.  She did not have this pain prior to the accident.  When she developed the pain she stopped jogging.  She has gradually built up her jogging and she can now jog for 6 km before the chest pain sets in.

[12]            Her back pain first developed approximately an hour after she left work and it got worse the next day, but it resolved itself within a month of the accident.

[13]            She did not play tennis for almost a year and a half because the right side of her body was sore.

[14]            She attended the drop-in clinic on three occasions and saw her family doctor, Dr. Sewell, on three occasions.  She had difficulty making appointments with Dr. Sewell because he did not work on Saturdays.  Initially, however, she did not think her symptoms would last very long and therefore did not see him sooner.

[15]            She has had massage therapy, physiotherapy, chiropractic treatment, attended her dentist for a night guard, and attended Pilates, and has incurred special damages in the amount of $3,982.

[16]            The massage therapy was commenced shortly after the accident and a friend of hers did some initial massage therapy on her until she saw Ms. Chung who provided massage treatments for her from approximately December 2005 to April 2007, a total of 22 treatments.  She had approximately 10 physiotherapy treatments between June and November 2006.  She also had chiropractic treatments on 6 occasions in February and March 2006.

The court, in awarding damages, made the following findings:

[26]            Here, however, I am satisfied that the plaintiff is a credible witness.  She did not exaggerate any of her claims and the massage therapy provided by her friend Ms. Chung was done on a professional basis and she paid somewhat less than the going rate.  Nevertheless, the massage therapy was beneficial and she should be reimbursed for those disbursements….

[28]            I have no difficulty accepting those principles, but as stated above I found the plaintiff to be a credible witness.  There is a lack of objective evidence and that has made me exceedingly careful in weighing the evidence, but at the end of the day I am satisfied that the plaintiff has suffered the injuries over the periods of time referred to in this judgment.  I am of the view that this is a mild to moderate soft-tissue type injury and I am satisfied that the range of damages is between $20,000 to $25,000, as set out in Reyes v. Pascual, 2008 BCSC 1324, Pardanyi v. Wilson, 2004 BCSC 1804, and Walker v. Webb, 2001 BCSC 216.  I am satisfied that she is entitled to non-pecuniary damages in the amount of $21,500 and special damages in the amount of $3,982.  The plaintiff is also entitled to her costs.

Interesting reasons for judgement were released today by the BC Supreme Court dealing with ICBC’s Low Velocity Impact Program (LVI Program) and Human Rights complaints.

The respondent was involved in a motor vehicle collision 2004.  This collision fell into ICBC’s LVI program and they defended the claim of the Plaintiff in accordance with that LVI program that ICBC had in place at the time.  Mr. Justice Wilson, summarized the program as follows:

[5]                On 12 March 2004, Mr. Yuan was involved in a road traffic incident.  A vehicle driven by another motorist collided with the rear end of Mr. Yuan’s vehicle while Mr. Yuan was stopped at a red light.  The Insurance Corporation of British Columbia is the liability carrier for the other motorist.

[6]                It appears to be common ground that, in addition to a contractual duty the Corporation had to its insured other motorist, to adjust this claim, there was a statutory duty the Corporation owed to Mr. Yuan to adjust the claim.  Mr. Yuan did make a claim for personal injuries he alleged he received as a result of the incident.  The Corporation, therefore, commenced its adjustment of Mr. Yuan’s claim.

[7]                At all material times, the Corporation had a policy, among others, based upon an analysis of the physical forces generated by the collision of motor vehicles.  The Corporation determined that in the ordinary course of events, a collision which resulted from a deceleration of less than eight kilometres per hour would not cause damage or injury to human tissue.  That was a rebuttable presumption.  But if a collision was determined by the Corporation to involve what is called a “low velocity impact” phenomena, then it was adjusted according to, among other things, an expedited procedure.

[8]                In this case, the Corporation did determine that the collision involved a low velocity impact between the two motorcars.  Accordingly, Mr. Yuan’s claim was assigned to the procedures and practices applicable for low velocity impact claims.  It is a part of the policies and practices that once the matter is precipitated into this low velocity impact procedure, that the adjuster go about determining whether or not there is information or evidence that will rebut the presumption.  That is to say, could the injury complained of be plausibly caused by the collision.

[9]                In this case, the Corporation determined that there was no information which rebutted the presumption at the time of the investigation and on 4 May 2004, the Corporation’s representative informed Mr. Yuan by letter that the Corporation would not consider any payments with respect to his claim against its insured for injuries arising from the incident.

The Respondent brought a human rights complaint alleging that the LVI program constituted ‘discriminatory practice‘.

ICBC brought a motion to dismiss the human rights complaint on the basis that the complaint was filed out of time and that ‘the complaint had no reasonable prospect for success‘.

The Human Rights Tribunal dismissed ICBC’s application.  ICBC appealed to the BC Supreme Court.  Mr. Justice Wilson agreed with ICBC and concluded that the Respondent’s application had no reasonable prospect of success.  His key findings were made at 46-52 which I reproduce below:

[46]            As the tribunal said in Ingram, there would have to be some allegation that the complainant “has been discriminated against on the basis of disability in order for a potentially valid human rights complaint to exist.  In other words, a complainant must allege facts that, if proven, would establish that they have been in some way adversely affected by reason of their disability.”  The member did not do that analysis.  I do.  There is no evidence that Mr. Yuan had his claim adjusted under the low velocity impact guidelines because he was physically or mentally disabled.  Indeed, the member found that any information or evidence with respect to his then existing state of health was not relevant to his considerations.

[47]            Second, the information before me, which was the same as the information before the member, is that Mr. Yuan was placed into the low velocity impact adjustment guidelines because the Corporation determined that the collision was a low velocity impact type.  It had nothing to do with any physical or mental characteristic of Mr. Yuan.

[48]            Third, there is no evidence of specifically how this particular method of adjusting a claim adversely affects Mr. Yuan.  The evidence is clear.  The complaint was received.  The determination was made that it was a low velocity impact.  Inquiries were made into the nature of the injury complained of, and a determination was made that it was implausible that this kind of a collision would cause the injuries complained of.  It was simply a matter of causation.  Based on the analysis the Corporation had done, it made a rebuttal presumption that there probably would not be injury to human tissue in the ordinary course of events, but if there was evidence to rebut the presumption, it was open to the complainant to bring that evidence forward.  Which Mr. Yuan eventually did do.

[49]            This complainant, Mr. Yuan, will not be able to establish that this Corporation put him into the low velocity impact adjustment process on the basis of his physical or mental disability or on the basis that it perceived him to be not disabled.  Therefore, I conclude that there is no reasonable prospect that his complaint against the Corporation will succeed under s. 27(1)(c) of theHuman Rights Code.

[50]            What the member did, however, as I say, was to set up a straw man.  What he said was, Mr. Yuan is treated differently because the Corporation perceives that he is not, or is less likely to be, injured or disabled.  So what attracts s. 8, according to the member, is not that there is discrimination against Mr. Yuan because of physical or mental disability but, rather, Mr. Yuan is discriminated against because the Corporation perceives him to not be physically or mentally disabled.

[51]            I agree with Ms. Westmacott.  That is to tip the analysis on its head.  To accept that notion seems to me to pound another nail into the coffin of common sense.

[52]            Those are my reasons.

I don’t write this post to support ICBC’s LVI program in any way.  I strive to have this blog comment on all ICBC cases of interest whether or not the results are pro Plaintiff or pro ICBC.  In my opinion the LVI program is designed to minimize claims costs and has little connection to whether or not injuries occur in a collision.  

Our courts deal with ICBC LVI claims frequently and the LVI archives of this website provide a good glimpse into how BC courts deal with LVI tort claims.  Nonetheless, this is an interesting judgement dealing with the unique allegation that the LVI program is somehow discriminatory. 

I usually focus my ICBC case law reports on cases from the BC Supreme Court and BC Court of Appeal but reasons for judgement were recently released from the Provincial Court of BC (commonly referred to as Small Claims Court) which caught my eye.

The Plaintiff was involved in a rear-end crash in May 2005.  From the judgement it appears to me to be a claim that fit ICBC’s Low Velocity Impact criteria (LVI) where ICBC takes the position that no compensable tort claim exists. 

The Plaintiff’s vehicle sustained little damage.  The evidence presented by the Plaintiff, her husband and her doctor was ‘fairly consistent’ and the court accepted that the Plaintiff suffered a ‘whiplash injury’ to her neck and back.

The court made the following findings “I accept that there is a four month injury from start to finish with approximately two months off work.  On those facts, it is my standard view and backed up by a number of cases, which oddly enough comes in directly between what the claimant puts forward way up at the upper end and what the defendant puts forward way down at the lower end, my view of this has been throughout coming towards the figure of $10,000 and that is the figure that I do award“.

The Plaintiff was also awarded her lost wages and special damages (out of pocket accident related expenses).

This judgement was only 3 pages long which is unusual for an ICBC personal injury case and makes for very easy reading.  I can’t find this judgment on the BC Provincial Court website but will post a link to the judgement if it becomes published.  This case shows how well suited the Provincial Court can be in some circumstances in dealing with ICBC injury claims involving minimal injuries which resolve quickly.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff just over $40,000 in total damages as a result of a 2003 motor vehicle collision.

The Plaintiff was stopped at a stop sign in Surrey, BC when her vehicle was rear-ended by the Defendant.  The issue of fault was not disputed.  What was disputed was whether the Plaintiff was injured in this crash and if so what the amount of her damages ought to be.

This case seems to be one that fit ICBC’s Low Velocity Impact (LVI) criteria.  The vehicles involved had very little damage.  Evidence was called from an insurance estimator who testified that there was nothing more than cosmetic damage to the vehicle and the repair estimate was slightly more than $500.  It is a frequent strategy of ICBC defence lawyers to focus on the amount of vehicle damage in LVI cases and this strategy appears to have been employed in this trial.

Despite the LVI-nature of this crash the Plaintiff satisfied the court she sustained injuries.  The Court was impressed with the Plaintiff and made the following finding:

[43]            I find that Ms. Orrell is an honest witness and accept her evidence of the event and the injuries that she sustained.  I am satisfied that she was injured in the collision, and that, as a consequence, she experienced pain and discomfort and disruption to her usual activities.  Those have not fully resolved at the time of trial.

Mr. Justice Williams summarized the injuries as follows in concluding that $30,000 was fair for the Plaintiff’s pain and suffering (non-pecuniary damages) 

[51]             The accident and the resultant injuries caused a reasonably significant measure of pain, suffering and loss of enjoyment of life for Ms. Orrell following the event.  Considering both her evidence and the first report of Dr. Miki, that effect was most pronounced for a period of approximately six months, but continued, albeit in a less debilitating way, up to the point of trial.  It has impacted on her participation in many endeavours, including being physically active in such pastimes as running, going to the gym, gardening, ordinary household tasks and, importantly, being as active with her son as she otherwise would have been. As I have indicated earlier, there are however other factors that must be taken into account, including her pre-accident status and her pregnancy in 2006.  Both of those contributed to her discomfort too.

Cases like this one show time and time again that the extent of vehicle damage does not determine what a person’s tortious injuries are worth in British Columbia, rather medical evidence is key in valuing ICBC injury tort claims.

Like many insurance companies the ICBC has a “Low Velocity Impact Program” (LVI) where tort claims are denied on the basis of little vehicle damages in collision.

When these claims are prosecuted one of the strategies often used by ICBC defence lawyers is to try to have the trial focus on the amount of vehicle damage sustained in the collision.    This can be done in many ways.  Often the Defendant is called to give evidence on the lack of vehicle damage, photos of the vehicles can be put into evidence and evidence of ICBC Vehicle Repair Estimators is sometimes put before the court.  Sometimes ICBC goes further and retains a professional engineer to give evidence about the amount of force involved in the collision.

British Columbia courts are not always receptive to engineering evidence being permitted in motor vehicle tort claims.  Reasons for judgement were released today by the BC Supreme Court ordering that such a report was indeed inadmissible.  Since the judgement is very succinct and easy to follow I reproduce it in its entirety below:

[1]                The plaintiff applies for an order that the expert report prepared by James Bowler, a professional engineer, not be admitted as evidence on the basis that it is neither relevant nor necessary. 

[2]                Mr. Bowler graduated in 1995 and since then has worked for MEA Forensic Engineers & Scientists.  The report makes the assumption that “the provided materials accurately describe the vehicle damages from this accident.”

[3]                Some of the material that was provided and referred to in the report was a final I.C.B.C. CL14 Repair Estimate and an I.C.B.C. CL14E Low Velocity Impact claim form on the plaintiff’s vehicle, and an I.C.B.C. CL14E Low Velocity claim form on the defendant’s vehicle.

[4]                None of this material is before me.

[5]                The purpose of the report was to prove what speed change occurred when the plaintiff’s vehicle was struck by the defendant’s vehicle.  The vehicles were not examined by the engineer.  He relied entirely upon the photographs and the materials supplied by I.C.B.C.

[6]                Mr. Bowler stated that the impact severity was assessed by comparing the damage in the incident with two staged collisions tests previously conducted by MEA.

[7]                The tests involved a 1985 Mazda RX7 and a 1984 Chevrolet Celebrity.  The plaintiff was driving a Nissan 2002 Sentra GXE 4-door sedan and the defendant was driving a Honda 2005 Element 4-door wagon. 

[8]                The experiment that was conducted by the MEA concluded that on the white Celebrity used in the experiment, which had a mass similar to that of the plaintiff’s vehicle, there was a speed change of 1.3 km/hour. 

[9]                The conclusion reached was that the plaintiff’s vehicle likely sustained a speed change (slowing of 1.3 km/hour to 2.9 km/hour in the accident). 

[10]            The defendant says that the change in speed is a factor that I can consider when determining the injuries suffered by the plaintiff.  However, without medical evidence as to the effect of the change in speed, this information is not of assistance.

[11]            It is trite to say that the opinion expressed by an expert is only as good as the facts that have been proven.  Here, there is no evidence as to the validity of the two-stage collision test conducted by MEA.  There is no evidence as to the qualifications of the people that performed these tests, whether or not this experiment was published in a peer review article, or whether or not Mr. Bowler had anything to do with those experiments.  It seems from the evidence that he did not, as he reviewed two video tapes of these staged collisions.  Additionally, the defendant has not put into evidence the I.C.B.C. Low Velocity Impact claim forms or the repair estimate.

[12]            I find that the report is not admissible.

Reasons for judgement were released today awarding a Plaintiff close to $120,000 in damages as a result of a 2006 BC car accident.

The accident occurred when the Defendant failed to see the Plaintiff’s vehicle and struck the driver’s side door of the Plaintiff’s vehicle.

All the doctors who gave evidence at trial agreed that the Plaintiff ‘suffered a slight tear to the cartilage of her left hip (a labral tear) and a disc bulge in the lumbar spine, and that these two conditions contribute to her ongoing pain…’

The issue at trial was one of causation, that is, did this accident (which apparently did not cause a lot of vehicle damage) cause the Labral tear?  After hearing from several medical witnesses Madam Justice Gerow concluded that there was a causal connection, finding that ‘I accept the opinions of Dr. Gilbart and Dr. Sahjpaul that the accident either caused the disc herniation and the labral tear, or caused those asymptomatic conditions to become symptomatic, and that (the Plaintiff’s) degenerative disease is minimal at this point.’

Dealing with the argument ICBC often makes at LVI trials (low velocity impact) that ‘the force of the accident was not such that it could have caused the injuries to the lumbar spine’ Madam Justice Gerow stated as follows:

35]            The evidence is that the defendants’ vehicle struck the driver’s side of Ms. Grant’s vehicle.  The defendants argue that the cost of repair of approximately $1200 indicates that this was a relatively minor accident and, therefore, unlikely to have caused the plaintiff’s ongoing injuries. 

[36]            Although the force of the impact is a factor to be considered in assessing the injuries sustained in an accident, it is only one factor to be considered.  The nature and extent of the injuries suffered by a plaintiff should be assessed on the basis of all of the evidence.

[37]            As noted by Thackray J. (as he then was) in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236 (S.C.):

Significant injuries can be caused by the most casual of slips and falls.  Conversely, accidents causing extensive property damage may leave those involved unscathed.

In the end, damages were assessed as follows:

Non Pecuniary Damages: $70,000

Past Wage Loss: $13,452

Loss of Earning Capacity: $30,000

Special Damages: $1,498

Cost of Future Care: $5,000

This case is worth reading for anyone advancing an ICBC claim where the issue of causation of a disc bulge is at issue to see the types of competing positions that can be advanced by the doctors at trial along with the analysis that a court can engage in to navigate the waters of expert opinions.

In reasons for judgement released today, the BC Court of Appeal dismissed the appeal of a $70,000 award of damages as a result of 2004 BC car accident.

The case possibly fit into ICBC’s LVI criteria based on the fact that the trial judge found that the ‘force applied to the Plaintiff as a resultof the collisions to her rear was actually very little indeed.’

The Plaintiff sued claiming various injuries including soft tissue injury, depression, anxiety, irremediable personality change, brain damage, concussion, post-consussion syndromne, post-traumatic stress disorder and chronic pain syndrome.  The Trial Judge recjected the medical diasnoses of brain injury, PTSD and post-concussion Syndrome.  In rejecting some of the alleged injuries the trial judge found that the Plaintiff was ‘unreliable’ as a witness.

The Plaintiff sought damages of over $1.7 Million.  Given the trial judges findings a total of $70,000 in damages was awarded.

The Plaintiff appealed arguing tha the trial judge disregarded the evidence of four lay witnesses and three expert witnesses.  The Plaintiff also argued that the trial judge should have confronted the Plaintiff during the trial to address the court’s concerns with her reliability.

The Court of Appeal dismissed the appeal.  In doing so the court found that the trial judge did not disregard the evidence and had this to say about ‘confronting’ the Plaintiff

(a)  Confronting the Plaintiff

[33]            The plaintiff maintains that the rule established in the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) applies to trial judges as well as opposing parties.  The rule is that “if you intend to impeach a witness you are bound, whilst he is in the box, to give him an opportunity of making any explanation which is open to him” (at 70).  The plaintiff says that, before determining that the plaintiff was lying, the trial judge was required to put that proposition to the plaintiff while she was testifying.

[34]            The plaintiff cites no authority to the effect that the rule in Browne v. Dunn applies to judges.  This is hardly surprising because such a rule would be antithetical to the role of a judge in Canada.  In this country, we have an adversarial system, not an inquisitorial one.

[35]            Such a rule would be unworkable with respect to judges in our system.  Judges are required to be fair and impartial, and are expected to hear all of the evidence before making final decisions on the credibility of witnesses.  They should not be required to confront a witness if they are concerned that there is any possibility that, after hearing all of the evidence, they may not accept all of the testimony given by the witness.

[36]            The rule in Browne v. Dunn is not suited for application to judges.  The rule stipulates that if the opposing party is intending to introduce evidence contradicting the testimony of a witness, such evidence should be put to the witness so that he or she will have an opportunity to provide an explanation.  What is being suggested in this case is not that anticipated evidence be put to the witness, but that the judge should confront the witness with the possibility that the judge may conclude that the witness is not credible.  That is not the rule in Browne v. Dunn – the rule does not require opposing counsel to confront a witness with the proposition that the witness is being untruthful before making submissions to the judge at the end of the trial that the witness should be found not to be credible.

[37]            In addition, the rule in Browne v. Dunn has not been treated as an absolute rule.  Evidence contradicting a witness’s testimony may be admitted despite a failure to put it to the witness, and the failure goes to the weight to be given to the evidence.  This feature of the rule is not adaptable to judges.

[38]            The plaintiff says the case of Volzhenin v. Haile, 2007 BCCA 317, 70 B.C.L.R. (4th) 15, is an example of what a trial judge is supposed to do in confronting a witness about whose credibility the judge has reservations.  The ground of appeal in that case was that the plaintiff had not been given a fair trial because, among other things, “the trial judge intervened excessively, thus giving an inquisitorial aspect to the trial that detracted from the disinterested and impartial hearing to which he was entitled” (paragraph 14).  In dismissing the appeal, this Court was not recommending the approach taken by the judge in that case.  It simply held that the judge had not “improperly interjected himself into the hearing, or otherwise created an appearance of an unfair trial” (paragraph 25).  Indeed, Volzhenin v. Haile illustrates the type of problem that could arise if judges were required to confront witnesses about their veracity.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff compensation as a result of a 2002 motor vehicle collision.

The collision happened in Victoria.  It was a rear end crash and the Defendant admitted fault.  This appears to be a crash that fit into ICBC’s Low Velocity Impact (LVI) criteria as the vehicles suffered minimal damage.

The Plaintiff claimed significant injury which was on-going more than 5 years post collision which would impact her future earning capacity.  The defence position was that that crash caused a mild soft tissue injury which resolved by October 2003.

The court found that the crashed caused a 2 year soft tissue injury and made the following findings:

[26] I have some difficult in assessing (the Plaintiff’s) evidence.  She describes the resulting dent in her car as huge, yet it does not look like that in the pictures and the cost to repair was estimated at only $53.  She said she was in incredible pain immediately after the accident, yet Ms. Lobb spoke to her and was under the impression everyone was fine.  No ambulance was called, nor did she seek immediate medical attention which I would expect would happen if the pain was immediately “incredible” and “excruciating”.  On the other hand, I have no doubt that (the Plaintiff) suffered pain caused by the accident which, as documented by the medical reports, gradually got worse over the ensuing weeks.  I also have no doubt that (the Plaintiff) continues to have pain to this day – it seems to me on looking at her that it is written in her face.  As Dr. Vincent testified, people do not go for injection therapy unless they have pain.  Furthermore, there is evidence from her mother, her friend and her employers that she is not the high energy person she once was.  The difficulty is to assess the degree to which the collision is the cause of her pain and the true effect of that upon her life.  There is a tendency to attribute a multitude of difficulties following a car accident to that one cause when often there are many…….

[31] (the Plaintiff) bears the onus of proving that the condition for which she seeks compensation was on the balance of probabilities caused by the December 30^th, 2002 collision. I  find on the evidence that she did suffer a mild to moderate soft tissue injury to her neck and back as initially diagnosed in her early months of treatment by Dr. Down which was caused by the collision.  I am not persuaded, however, on the balance of probabilities, that her condition caused by the accident injuries extended beyond the two year period initially foreseen by Dr. Down.  She was clearly on a course of recovery in that two year period.  What happened thereafter has not been proven to have been caused by the December 30^th, 2002 collision.

[32] I assess (the Plaintiff’s) general damages for a mild to moderate soft tissue injury to her neck and back extending over a period of two years at $30,000.

Today I’m blogging from sunny Kamloops from my colleague Peter Jensen’s office.  Clients are coming soon so I have to keep this short.

The Supreme Court of BC has an unlimited monetary jurisdiction whereas BC small claims court currently has a jurisdiction of $25,000 or less.  When suing for damages as a result of a BC car accident you have to decide which court you will sue in.

When involved in an ICBC tort claim in the BC Supreme Court the winner can be awarded Costs, whereas in Small Claims Court the winner can only be awarded disbursements as opposed to Tariff Costs.

When you bring an ICBC claim in Supreme Court and are awarded less than $25,000 can you still be awarded your court tariff Costs?  The answer is sometimes.

Rule 57(10) of the BC Supreme Court rules states that

A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.

The question then is, did you have a good reason to sue in Supreme Court when you started the lawsuit?

Reasons for judgement were released today awarding a Plaintiff Costs even though the ultimate award was below $25,000.  At Paragraphs 7-10, the trial judge (Madam Justice Humphries) explained why in this case the Plaintiff had ’sufficient reason’ to bring the suit is Supreme Court holding that:

[7] The relevant time at which the value of (the Plaintiff’s) claim should be assessed, then, is when the action was commenced.  At that time, (the Plaintiff) still had some residual effects from the accident and was missing the occasional day of work.  I found this evidence credible, and noted that she still had occasional flare-ups, with decreasing frequency.  Her voluntary retirement worked to the benefit of the defendant in that any potential ongoing wage loss from these flare-ups would not be claimed against him.  (the Plaintiff) was careful to ensure that only those days attributable to the effects of the accident were claimed for.  She asserted a claim for loss of earning capacity, but decided not to pursue it by the time of trial.  Although such an award would not have been large, if any at all were established, it is difficult to say, in hindsight, that the entire claim would obviously have come under the Small Claims limit of $25,000 at the time the action was commenced.  Plaintiff’s counsel subsequently came to assess the claim with the advantage of all the information available by the time of trial and to put forward a realistic and sustainable range of damages in his final submissions, but that is not, according to Reimann, relevant to the present issue.

[8] In Faedo v. Dowell and Wachter, M064051 (October 19, 2007) Vancouver, Curtis J. held that in a situation where the defendant put the plaintiff to the proof of having suffered any injury at all, thus making her credibility a crucial issue at trial, it was reasonable for the plaintiff to require the assistance of counsel.  She was therefore justified in commencing the action in Supreme Court where she could hope to recover some of the costs it was necessary for her to expend in retaining counsel to recover the compensation to which she was found to be entitled.  This reasoning has application here as well.

[9] In the result, the plaintiff has advanced sufficient reason for having commenced her action in this court and is entitled to her costs pursuant to Rule 66.

This is a good judgement for Plaintiffs bringing ICBC claims, particularly those involved in Low Velocity Impacts (LVI’s) where ICBC denies that injury occurred.  It recognizes the fact that ICBC often tells people that they aren’t injured at all and this brings their credibility into play.   Here the court realized that in such circumstances it is appropriate to hire a personal injury lawyer and try to offset some of these costs by suing in Supreme Court even though the Small Claims Court has sufficient monetary jursidiction to deal with the tort claim.

Do you have questions about this case or a personal injury claim in Supreme Court that you would like to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)

After a summary trial on June 23, 2008 pursuant to Rule 18-A (a rule that lets certain cases proceed to trial using affidavit’s as evidence instead of requiring the parties and witnesses to testify in person in court) reasons for judgement were released today awarding a Plaintiff $12,250.10 in compensation as a result of a 2005 Vancouver car crash.

This is another LVI case. The Plaintiff’s 1995 Honda Civic was rear-ended by a Ford F150 pickup truck. It was apparent that ‘this was a low impact collision’.

Many BC residents have received letters from ICBC telling them their claim has been denied based on ICBC’s LVI policy often referred to as ‘no-crash no cash’.

As is often the case, here the claim was brought to trial and the court recognized that an injury occurred despite the absence of significant vehicle damage. In reaching this conclusion Mr. Justice Williams made some useful comments about LVI crashes, specifically:

[18] This was undoubtedly a low velocity collision where damage to the vehicles was so minimal as to be almost non-existent. All of the evidence supports that conclusion. In such instances, claims for compensation for injury are often resisted on the basis that there is reason to doubt their legitimacy. Furthermore, in this case the principal evidence in support of the plaintiff’s claim is subjective, that is, it is her self-report. There is not a great deal of objective evidence to support her description of the injuries she claims to have suffered.

[19] In response to those concerns, I would observe that there is no principle of law which says that because the damage to the vehicles is slight or non-detectable, that it must follow that there is no injury. Certainly, as a matter of common sense, where the collision is of slight force, any injury is somewhat likely at least to be less severe than in a situation where the forces were greater, such as to result in significant physical damage to the automobiles. Nevertheless, I do not accept that there can be no injury where there is no physical damage to the vehicles.

The court went on to find that the Plaintiff suffered injuries as follows:

[21] I find that the plaintiff is an honest witness and accept her evidence of the event and its consequences. On all the evidence, I conclude that the plaintiff was injured in the collision and that she experienced moderate discomfort in the first two or three months following the accident. With the passage of time, she made a steady and gradual recovery, although there was some ongoing but lessening discomfort over the following months. Fortunately for her, the degree of pain was not especially great, although it undoubtedly detracted from her everyday comfort and full enjoyment of life. To some degree, she experienced frustration and impatience with the way she felt. There is a paucity of evidence with respect to details of disruptions or difficulties that the injuries caused in her day to day routine.

$9,000 was awarded for pain and suffering, $2,031 for lost wages when she took time off work ‘to enable her to recover from her injuries’ and $1,219.10 in special damages (accident related out of pocket expenses).

Do you have questions about this case or an ICBC LVI accident that you wish to discuss with a BC personal injury lawyer? If so click hereto arrange your free consultation with Victoria ICBC injury claims lawyer Erik Magraken (with associated offices in Victoria, Nanaimo, Kelowna, Port Hardy, Kamloops, Duncan, Courtenay, Qualicum Beach, Port McNeil, Tofino, Vernon, Dawson Creek, Revelstoke, Ucluelet, Salmon Arm, Castlegar, Sicamous and Nakusp)