ICBC Law

The first released judgment by the BC Supreme Court in 2009 dealing with an ICBC Injury Claim was handed down today.

The Plaintiff was involved in a 2005 motor vehicle collision.  It was an intersection collision where the Defendant turned left in front of the Plaintiff’s vehicle.  The Plaintiff had a green light and a significant impact occurred.

The Plaintiff’s vehicle sustained ‘considerable’ damage and her vehicle was written off.  Liability (fault) was admitted on behalf of the defendants on the morning of trial.  The trial focused on the Plaintiff’s injuries and their value.

The most contentious claimed injury was a concussive injury affecting cognitive abilities.   The court dismissed the alleged brain injury stating that “The plaintiff bears the onus of proving that it is more probable than not that she suffered each of the injuries she alleges.  In my opinion, it has been shown that there is a reasonable possibility that the plaintiff sustained a mild brain injury as a result of the motor vehicle accident.  But I am not persuaded that it is more probable than not that this occurred.”

Mr. Justice Halfyard did a great job addressing the competing medical evidence and the discussion at paragraphs 30 - 58 of this judgement is worth reviewing for anyone advancing an ICBC brain injury claim to see some of the issues that often come into play during litigation.

In valuing the Plaintiff’s Pain and Suffering at $55,000 the court summarized her injuries and their effect on her life as follows:

[89]            I conclude that the plaintiff sustained injuries to the soft tissues of her neck and upper back, the rotator cuff muscles in her left shoulder and the soft tissues in her chest wall.  I would describe the severity of these injuries as being moderate.

[90]            I find that the plaintiff sustained a loss of her hearing ability (much more pronounced in her left ear), as a result of a mild labyrinthine concussion caused by the accident.  Not all of this loss of hearing was caused by the injury.  Some of it was attributable to the normal aging process.  I accept Dr. van Rooy’s description of the overall loss of hearing ability as being mild.

[91]            I am not satisfied that the plaintiff sustained injury to her brain.  Nor am I satisfied that any injury she sustained in the accident caused a loss of her ability to maintain proper balance or equilibrium. 

[92]            The plaintiff has substantially recovered from all of her injuries except for the injury to her left shoulder.  Three years have elapsed since the accident, and the plaintiff’s symptoms may persist for another two years into the future.  These symptoms will be troublesome and sometimes painful, when she is working with her hands while holding her arms in certain positions.  To some degree, these effects will affect the plaintiff’s ability to make and repair costumes, and to work in her daughter’s shop.  But her hip and her low back problem are probably as much or more a hindrance to the plaintiff, than is the residual problem with her left shoulder.  The depression and anxiety that has plagued the plaintiff for some years is the most likely cause of her loss of motivation.  But I accept that the plaintiff’s emotional reaction to her injuries from the motor vehicle accident did aggravate her pre-existing psychological condition, to some extent.

If you are insured with ICBC and are making a claim for benefits you have a duty to act in good faith in your communications with ICBC.   Similarly, ICBC has a duty to process your first party insurance claim in good faith.

What happens if you make a false statement to ICBC?  Can this cause a breach of your insurance?  The answer is yes, depending on whether the statement is willful and if it was material in processing the claim.

Reasons for judgement were released today by the BC Supreme Court addressing this issue.  The Plaintiff owned a 2000 Porshe Boxter which was allegedly stolen in 2005.  The Plaintiff purchased the vehicle in 2004 and paid $38,000.

After the vehicle went missing the Plaintiff reported the theft to ICBC and the police.  He told the police that the vehicle was worth $45,000.  When filling out a form titled ‘Report of Automobile” to ICBC the Plaintiff he filled out the box asking ‘amount paid’ with the sun of $44,000.

ICBC refused to pay the Plaintiff for the value of the vehicle.  The Plaintiff sued.   The claim was dismissed because the court found that the Plaintiff ‘inflated’ the value of the vehicle when reporting the loss to ICBC and doing so was ‘material to (ICBC’s) assessment of the claim), thus holding the Plaintiff in breach of section 19 of the Insurance (Motor Vehicle) Act Regulations.

The court summarized the law starting at paragraph 114.  I reproduce this below:

Forfeiture Pursuant to the Provisions of the Insurance (Motor Vehicle) Act Regulations, R.S.B.C. 1996, c. 231, S. 19(1)(e)

[114]        The section reads:

19(1)    If …

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

all claims by or in respect of the applicant of 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.

[115]        The leading statement of law in this matter was enunciated by McEachern C.J.B.C. in Inland Kenworth Limited v. Commonwealth Insurance Company, (1990) 48 B.C.L.R. 2d 305 at pages 309 – 311, and cited by Rowles J.A. in Brown v. Insurance Corp. of British Columbia, 2004 BCCA 254 at paras. 10-11:

10.       In Inland Kenworth, in which s. 231(1) of the Insurance Act, R.S.B.C. 1979, c. 200 was under consideration, McEachern C.J.B.C. said, at 309-311 (B.C.L.R.):

I agree that a wilfully false statement which is not material may not usually be relied upon by the insurer. Materiality is, however, one of the fundamental principles of insurance law and it manifests itself in many ways. The classic test of materiality in insurance law is whether a statement is capable of affecting the mind of the insurer.

* * *

It is sufficient, in my view, if the fraud or wilfully false statement is capable of affecting the mind of the insurer either in the management of the claim or in deciding to pay it. It is unnecessary to speculate about what the insurer would have done if the fraud had not occurred but I point out that the insurer may have waived appraisal and decided to pay Blue Book value. On the other hand, the insurer may have done exactly what it did in this case, that is submit the question to appraisal.

A contract of insurance is one of utmost good faith and one cannot commit frauds or make wilfully false statements about the subject matter of the claim for any purpose without risking the loss of the right to indemnity if it turns out to be material on any issue.

* * *

I do not say that any wilfully false statement will be sufficient to vitiate coverage. It must be material. I think the wilfully false statement about the subject matter of the insurance, intended to comply with the warranty, but which also related to the question of value, and was capable of affecting the mind of the insurer, destroyed the integrity of the claim, and was material at least to the latter question. Under the Act, and at law, this forfeits the right of the insured to indemnity.

11.       In Peterson v. Bannon , supra, s. 18(1)(e), which is now s. 19(1)(e) of the Act, was under consideration,.  In that case, Finch J.A., as he then was, said at para. 59:

Inland Kenworth therefore affirmed that if an insured makes a wilfully false statement about the subject matter of his or her claim, that person risks forfeiture if the statement is material to any issue arising in the claim. Although the respondent argued otherwise, there is no real distinction between the language of s. 231(1) and s. 18(1)(e). I consider myself bound by Inland Kenworth, a judgment with which I respectfully agree. A wilfully false statement will invalidate an insured’s claim only if the statement is material to the claim at risk of forfeiture.

[Underlining added

[116]        Mr. Chahal correctly argues that there has to be a wilfully false statement and secondly that it was material to the processing of the claim.

[117]        As well, he relied on the decision of Cullen J. in DeCastro v. I.C.B.C., oral reasons given October 2, 2006, which had some similarities in a central issue arising from the effectiveness of the immobilizer in a BMW that had been apparently taken from outside a pub on March 31, 2004, and subsequently found without tires and wheels, various front-end components and destroyed by fire.

[118]        Cullen J. noted the initial burden falls on the plaintiff to show that loss falls within the coverage but that is not onerous and that secondly, the onus then shifts to the defendant to prove on a balance of probabilities intentional material conduct by the plaintiff that is in breach of one of the sub-sections of s. 19(1).

[119]        The principal arguments about representations made with respect to the claim are: (1) the statement made as to the price paid; (2) the number of keys provided by Mr. Leach.

[120]        Mr. Chahal paid $38,000 to Mr. Leach by official cheque on November 10, 2004.

[121]        From the outset of Mr. Chahal’s report to the Delta police, through the reports of loss to I.C.B.C., the initial recorded statement of August 31, 2005 and the statement on oath in December 2005, Mr. Chahal spoke of the price paid or value as $44,000 or $45,000.  Only in the case of the Proof of Loss form sworn on November 8, 2005, did he say he had researched the value.

[122]        I am unable to accept that he would not have known precisely the amount he paid as reflected in the official cheque.

[123]        I accept the reported value of the vehicle was material to the insurance corporation’s assessment of the claim and that the plaintiff sought to inflate the value of the vehicle.  Further, no evidence was led by Mr. Chahal to support the alleged value.

One of the most common questions asked of me through this blog is “how much is my Pain and Suffering worth in my ICBC personal injury tort claim?”.  The answer to this, of course, depends on various factors and who better to discuss these than a BC Supreme Court judge?

On that point, reasons for judgement were released today discussing the law of ‘pain and suffering’ in tort claims.  Pain and Suffering is awarded under the legal head of damage called “Non-Pecuniary Loss”.  Non Pecuniary Loss includes damages for “pain and suffering, loss of enjoyment of life and loss of amenities”.

In today’s case $70,000 was awarded in non-pecuniary damages as a result injuries sustained in a 2005 BC car crash.  In doing so Madam Justice Russell summarized the law of non-pecuniary damages ar paragraphs 104-105 of the judgment as follows:

Non-pecuniary damages

[104]        The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023, B.C.J. No. 1535 at para. 134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229; Kuskis v. Tin, 2008 BCSC 862, B.C.J. No. 1248.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis at para. 136. 

[105]        There are a number of factors that courts must take into account when assessing this type of claim.  The majority judgment in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines a number of factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)      age of the plaintiff;

(b)      nature of the injury;

(c)      severity and duration of pain;

(d)      disability;

(e)      emotional suffering; and

(f)      loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)      impairment of family, marital and social relationships;

(h)      impairment of physical and mental abilities;

(i)       loss of lifestyle; and

(j)       the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).

Cases such as this one are key in helping one understand the principles behind awards for pain and suffering in ICBC tort claims.  Once the general principles of this head of damage are understood, the extent of injuries and prognosis known, and cases with similar injuries are canvassed the easier it will be to value the potential range of damages for pain and suffering in an ICBC personal injury (tort) claim.

It’s snowing heavily outside, our Christmas tree is lit and the the fire is going.  It’s a beautiful December evening in British Columbia unless of course you’re out in traffic.  With that in mind I’m republishing a post I originally wrote in April of this year on this ICBC injury claims blog:

Snow in BC has two reliable results 1. Car Accidents, 2. Phone call to BC personal injury lawyers about those car accidents. The second is particularly true for Victoria personal injury and ICBC claims lawyers because of the local populations relative inexperience dealing with winter driving conditions.

In anticipation of the almost certain phone calls I will receive this week as a Victoria ICBC claims lawyer I write this post.

If you are the driver involved in a single vehicle accident in British Columbia, and you lost control due to the weather, all you can likely claim from ICBC are Part 7 Benefits (also referred to as no fault benefits). There is (except in some unusually peculiar situations such as an ICBC insured driver contributing to the road hazards) in all likelihood no claim from ICBC for pain and suffering (non-pecuniary damages) in these circumstances. A person’s right to claim pain and suffering and other “tort” damages only arises if someone else is at fault for your injuries. In these single vehicle accidents you usually only have yourself or the weather to blame, and last time I checked you can’t sue mother nature.

If someone else contributed to the accident (perhaps the road maintenance company for failing to act in a timely fashion or perhaps a mechanic for failing to bring your vehicle up to snuff last time you had it inspected) you will have to make a claim against them. Chances are they are not insured through ICBC for such claims and instead you will have to go against their policy of private insurance.

Now, if you are a passenger in a single vehicle, weather related accident, you may very well have a claim for pain and suffering. This claim would be against your driver (except perhaps in the unusual circumstances mentioned above). If your driver did not operate the vehicle safely in all the circumstances (for example driving too fast for the known or anticipated poor road conditions) and this caused or contributed to the collision then you have a tort claim. Assuming the driver is ICBC insured then you have the right to apply for both no-fault benefits from your own insurance and make a tort claim against the driver that will be covered through his third party liability ICBC insurance.

If you are advancing a tort claim against a driver be weary of the defence of “inevitable accident”. ICBC defends claims. One of the best defences to a weather related accident is that it was “inevitable”. What this means is that the driver, operating safely, could not have avoided losing control of his vehicle. If this can be proven than the tort claim can be defeated.

People naturally don’t want to get those known to them in trouble and it is all too common that when reporting such a claim to ICBC passengers too readily agree to how unexpected the accident was and how the driver was operating the vehicle very carefully. If this is true that’s fine. My words of caution are as follows: If the driver was not safe (I’m not talking about driving like a maniac here, I’m talking about driving less than carefully for the winter driving conditions) and you give ICBC the alternate impression with a view towards helping the driver out, the result may be severely damaging your ability to bring a tort claim.

Tell the truth and know what’s at stake when doing so. If ICBC gets the false impression that the accident was inevitable you will have a much harder time advancing or settling your ICBC tort claim.
The bottom line is this: If an accident truly is inevitable and there is no tort claim so be it, but, don’t lead ICBC to this conclusion if it isn’t true. Doing so will hurt your claim for pain and suffering.

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.

Reasons for judgement were released today by the BC Supreme Court finding a motorcyclist liable for injuries to his passenger.

The Plaintiff was a passenger on the Defendants motorcycle.  He turned onto a highway in British Columbia and changed gears.  This produced a ‘burst of accelaration’ and at this time the Plaintiff was thrown off the back of the motorcycle.

The Plaintiff sustained road rash types of injuries ‘including loss of skin to various parts of her body, soft tissue injuries, various extensions and strain injuries, a lingering loss of sensation in her fingertips, and a reoccurrence of previously suffered depression‘.

The court found that the Defendant driver was liable in negligence for these injuries.   The courts key findings were made at paragraphs 23-24 which I reproduce below:

[23]            I find that Mr. James was an experienced motorcyclist.  I also find that Ms. Santiago was an experienced passenger on a motorcycle and that she had considerable experience as a passenger on a motorcycle driven by Mr. James.  As an experienced passenger, Ms. Santiago would have been very much aware of what occurs when the driver of a motorcycle shifts gears.  I find that nothing on August 13, 2002 would have diverted Ms. Santiago’s attention away from what she could expect would be how Mr. James would operate his motorcycle.  I find that she would have no expectation of sudden acceleration and that her previous experience including the trip that day from Dewdney to Harrison Mills would not have led her to believe that the motorcycle would be driven by Mr. James in a way that sudden acceleration would occur.

[24]            I find that Mr. James did operate the motorcycle negligently that day.  I find that he accelerated between first and second gear and beyond in an unsafe manner and at a rate which was far in excess of what a passenger like Ms. Santiago would expect and was entitled to expect.  I find that the excessive acceleration was undertaken without warning Ms. Santiago that it was about to occur.

The court assessed the Plaintiff’s non-pecuniary damages (pain and suffering) for her various injuries at $40,000.

This is a useful case for anyone advancing an ICBC injury tort claim who was injured even though no actual collision occurred.  This case demonstrates that a collision is not a pre-requisite for succeeding in a tort claim in British Columbia.  

Reasons for judgement were released today by the BC Supreme Court ordering the production of certain documents that the defendants claimed were exempt from disclosure due to ‘litigation privilege.’

The Plaintiff suffered severe head injuries when struck as a pedestrian in 2006.   In the course of her lawsuit her lawyer served the defendants with a Demand for Discovery of Documents.  In exchanging their List of Documents the Defendants claimed ‘litigation privilege’ over some of the documents.  The Plaintiff brought motion to compel production of these documents and largely succeeded with the court holding that:

the defendants failed to provide sufficient information to enable the plaintiff to assess whether the defendants were correctly claiming litigation privilege over each of the documents found in P3 to P9 of their list of documents.

In reaching this conclusion Mr. Justice Blair provided a great overview of the legal principles relating to a claim of litigation privilege which I reproduce below:

[5]                Litigation privilege extends to those documents prepared for the dominant purpose of preparing for ongoing or reasonably anticipated litigation as discussed in Hamalainen (Committee of) v. Sippola, [1991] B.C.J. No. 3614; 2 W.W.R. 132; 9 B.C.A.C. 254; 62 B.C.L.R. (2d) 254.  Wood J.A. (as he then was) for the Court of Appeal stated at ¶18 that the two following factual findings required answering to determine whether litigation privilege applied to a document:

(a)        Was litigation in reasonable prospect at the time the document was produced, and

(b)        If so, what was the dominant purpose for the document’s production?

[6]                Wood J.A. held that the onus is on the party claiming privilege to establish on a balance of probabilities that both tests are met in connection each of the documents for which the party claimed litigation privilege.  With respect to the first factual finding, Wood J.A. wrote at ¶20 that

. . . litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet.

[7]                With respect to the second factual finding Wood J.A. wrote:

21.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

22.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p.541 of the report:

If material comes into being for a dual purpose — one to find out the cause of the accident — the other to furnish information to the solicitor — it should be disclosed, because it is not then ‘wholly or mainly’ for litigation. On this basis all the reports and inquiries into accidents — which are made shortly after the accident — should be disclosed on discovery and made available in evidence at the trial.

23.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

24.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[8]                The dominant purpose test in the context of litigation privilege came before the Supreme Court of Canada in Blank v. Canada, 2006 SCC 39.  Fish J. for the majority noted at ¶60 that the dominant purposes standard was consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure.

Reasons for judgement were released today compensating a Plaintiff as a result of injuries and loss sustained in a 2006 single vehicle collision that occurred in Vancouver, BC.

The Plaintiff, an 80 year old woman, was driving her Nissan back home from the hair salon.  She drove down hill, applied her brakes but they did not respond.  She lost control of her vehicle and smashed into a lamp standard prior to coming to a stop.  The collision was significant and caused numerous injuries.

The Plaintiff sued Kal Tire Ltd. who serviced her vehicle in the years prior to the crash.  ICBC also sued Kal Tire Ltd. for repayment of funds they paid to the Plaintiff as a result of this crash.

The court found that Kal Tire was responsible for this collision and thus ordered that damages be paid to the Plaintiff and to ICBC.  The key finding was made at paragraphs 51- 53 which I reproduce below:

[51]            The evidence demonstrated on the balance of probabilities that Kal’s negligence in servicing the Nissan’s brake system caused the brakes to fail.  Mr. Brown’s physical observations of undisturbed front bleed screws is consistent with a failure to properly perform the brake fluid flush.  This would have left existing contaminated brake fluid in the system.

[52]            Ms. D’Oliveira did not notice a change in the brake system functioning after the servicing.  The brakes may have been performing poorly before the servicing, which led to the replacement of the rear wheel cylinders.  If the brake fluid flush was done incorrectly, brake function would not improve despite the servicing.  Alternatively, Ms. D’Oliveira may not have been particularly sensitive to the sponginess of the brakes.  While it appeared sudden to Ms. D’Oliveira, the brake system was likely performing poorly even prior to servicing, and there simply continued to be a slow deterioration leading to complete failure. 

[53]            As a result, Kal is liable for Ms. D’Oliveira’s injuries arising from the accident, and for the sum agreed between the parties in the ICBC Action.

The Plaintiff suffered various injuries which are summarized at paragraphs 54-56 of the judgement which I reproduce below.   The court assessed the Plaintiff’s non-pecuniary damages at $40,000.  

[54]            Ms. D’Oliveira suffered significant orthopaedic injuries of ten broken ribs, a crushed right heel, and a fracture to the C-7 vertebra.  She had surgery on her heel to insert pins, had a cast on her leg for seven weeks, and was placed in a neck collar.  She spent 52 days in a hospital setting.  She was discharged using a wheelchair, but shortly afterwards was able to walk with a walker and then a cane.  During this time she was assisted in household activities by her son and sister. 

[55]            Ms. D’Oliveira was able to walk unaided about nine months after the accident.  By that time she was mostly pain-free, and able to resume most of her activities.

[56]            Ms. D’Oliveira’s on-going problems are that she is unsteady on her feet.  She has given up her regular stay-fit classes.  She is more cautious in turning her head.  She has to wear wide shoes to accommodate swelling.