ICBC Law

Reasons for judgement were released this week by the BC Supreme Court considering the issue of timing of applications for compelled medical exams in the context of an ICBC Injury Claim.

Under the current BC Supreme Court Rules expert evidence that is not ‘responsive‘ is required to be served on opposing parties 60 days before it is tendered into evidence.  This requirement is set out in Rule 40A.  (As of July 1, 2010 a new set of BC Supreme Court Rules will come into force and Rule 11 will govern the admissibility of reports which makes some changes to timelines for exchange of expert evidence).

When a Defendant comes to court asking for a compelled exam BC Courts have considered the issue of timing and if the application is inside the timelines for service of a report the Defendant may have an uphill battle.  Reasons for judgement were released today demonstrating this.

In today’s case (Moore v. Hind) the Plaintiff was injured in 2 motor vehicle collisions.  Both trials were set to be heard together.  ICBC brought an application to compel the Plaintiff to be assessed by Dr. Ray Baker, a doctor who specializes in so-called ‘addiction medicine‘.  This application was brought late in the litigation process.  ICBC argued that the medical evidence served by the Plaintiff’s lawyer gave a “clear and emphatic indication that the plaintiff may suffer a drug addiction problem” and as a result the need for the late application.

The Plaintiff disagreed arguing that ICBC could have pursued this line of inquiry earlier in the process.  Master Keighley agreed with the Plaintiff and dismissed the motion.  In doing so the Court placed weight on the late timing of this application and this proved fatal to ICBC’s argument.  Specifically the Court stated as follows:

[10] This application raises certain practical difficulties.  One is the question of whether a further examination and the likely preparation of a report at this time will jeopardize the existing trial date.  There is certainly very little time left now between the date of this application and the trial.  It is unlikely that the plaintiff would have sufficient opportunity to in any way rebut the findings in a report prepared by Dr. Baker.  It seems to me there is a substantial likelihood that should the order sought be granted, an application may be made to adjourn the trial.

[11] It also seems to me that this application is unnecessarily brought at a late date.  There was, to my mind, a significant indication of overuse or misuse of prescription drugs as early as a year ago, and arrangements might then have been made in a more orderly fashion to have an examination by Dr. Baker or another, with respect to these issues.

[12] Having read portions of Dr. Smith’s report, it seems to me, however, that the third parties may well be afforded an opportunity to yet achieve a level playing field by having their own expert, Dr. Smith, consider the reports, the clinical records and other information relating to the claim with regard to assessing the issue of the plaintiff’s prescription drug use and its impact potentially upon her claim.

[13] In this regard it seems to me that the prejudice to be suffered by the third party in not having an opportunity to have a further assessment is minimized, whereas the potential prejudice to the plaintiff is substantial.  She is depicted in the medical reports as being a highly tense, anxious individual, and it would seem, and indeed she suggests that she will be extremely prejudiced if this claim is not resolved at the earliest possible date.  There is also an issue of inconvenience which is of a relatively minor nature, in that she has another medical examination scheduled for the morning of the proposed examination and would be obliged to cancel that if ordered by the court to attend for an appointment with Dr. Baker.  She also then had made plans to visit with her mother in the Christmas holidays, beginning on the night of December 22nd.  Those issues of inconvenience are of a relatively minor nature and would not be conclusive in themselves.

[14] I am satisfied that the application should be dismissed.  It is simply brought at too late a date and it is likely that it will result in an adjournment of this trial, which the material before me indicates, if adjourned, would likely not be rescheduled until perhaps June of 2011.

Reasons for judgement were released today by the BC Supreme Court discussing whether a motorist has to stay at the scene of a single vehicle accident in British Columbia.

In today’s case (ICBC v. Pariah Productions Inc.) the Defendant vehicle was involved in a single vehicle collision when its driver struck the wall of a Wendy’s restaurant.   The motorist drove home after the collision without notifying anyone of what happened.

ICBC paid out the property damage claim and then sued the Defendant for their money back claiming that the motorist was in breach of an obligation to remain at the scene of the accident.  The trial judge disagreed and dismissed ICBC’s claim.  ICBC appealed and today’s case dealt with this.

Section 68(1)(a) of the BC Motor Vehicle Act in part requires “the driver or operator or any other person in charge of a vehicle that is, directly or indirectly, involved in an accident on a highway to remain at or immediately return to the scene of the accident“.

ICBC argued that the Defendant was in breach of this obligation.  The trial judge disagreed.  On Appeal, Mr. Justice Silverman found that “the trial judge did correctly decided this issue…I endorse the correctness of his analysis in paragraphs 16-19 of this Reasons for Judgement.”

The Trial Judge’s reasons which were upheld were as follows:

[16]      It is to be questioned whether or not s. 68(1) and then 68(3) are sections that deal with the same type of accident or whether they are distinctly two different types of accidents. Section 68(3) provides the duty of a driver in an accident is as follows:…

[17]      It is my view that 68(1) and 68(3) of the Motor Vehicle Act involve two different situations: … Sixty-eight (1) involves the situation where there is a car accident involving another vehicle and there is injury or loss to another person, be it the other driver or someone else. Section 68(3) however, involves a situation where there is only a single-vehicle accident, no persons are injured but there is damage to property only. So, the two sections are quite distinct from one another and the obligations on the driver involved in a 68(1) situation or a 68(3) situation are quite different.

[18] For 68(1) of the Motor Vehicle Act to apply in this case,it is my view that there had to be a situation where not onlywas there damage to or loss or injury to some other person, but there also had to be another driver involved. The reason I say that is that 68(1)(c) says that the driver involved in the accident must: produce in writing to any other driver involved in the accident and to anyone sustaining loss or injury, and, on request [to a peace officer or] to a witness … the information.  In my view, that section presupposes that he, the driver, has obeyed his obligation to remain at or immediately return to the scene of the accident. So 68(1), in my view, involves twocars and a situation additionally of someone sustaining lossor injury, be it that other driver or some third party,

whereas s. 68(3) in my view, only applies to a situation where

one driver is involved and he/she has caused damages to property on or adjacent to the highway, other than another vehicle. He then must take reasonable steps to locate and notify in writing the owner or person in charge of the property and send them the facts of the accident and provide other details.

[19]      In s. 68(1), there is a mandatory requirement that the driver involved in the accident remain at the scene or immediately return to the scene and he must produce in writing to the other driver and anyone sustaining loss, various pieces of information, whereas under s. 68(3), there is no provision that he must remain or that he must immediately return to the accident. Rather, it says that he must take reasonable steps to locate and notify in writing the owner or person in charge, of the fact that an accident has taken place. The fact that he is required under 68(3) to take reasonable steps to locate and notify in writing the owner or person in charge of the property, in my mind, means that it is not something that he is required necessarily to do “immediately”, whereas under 68(1), when he has an accident with another car and the other driver or the other driver’s property or even somebody else’s property, is damaged or lost, in that two-car accident, he has to stay there and “immediately” give the information.

While unusual the answer is yes.  Reasons for judgement were released today discussing this area of the law.

In today’s case (Skinner v. Guo) the Plaintiff was involved in a 2006 BC Car Crash.  The Plaintiff was driving on Highway 1 when he rear-ended the Defendant’s vehicle which was stationary in the Plaintiff’s lane of travel.  The Defendant did not give any evidence at trial although it appears the Defendant stopped because he struck a coyote.  Given the Defendant’s lack of explanation for being stopped in a travelled portion of the roadway the Court found that he was in violation of s. 187 of the Motor Vehicle Act.

The Plaintiff argued that the Defendant was at fault for the collision for stopping his vehicle and failing to activate his emergency flashers.  Mr. Justice Harvey disagreed and found the Plaintiff 100% at fault for failing to see a stationary vehicle that was there to be seen.  Before dismissing the case Mr. Harvey said the following with respect to fault when a motorist rear ends another in British Columbia:

[15] All of the cases referred to me by counsel note that there is a high onus on a following driver, as stated in Molson v. Squamish Transfer Ltd. (1969), 7 D.L.R. (3d) 553 (B.C.S.C.).  One principle to be extracted from the rear‑end cases is that when one car runs into another from behind, the onus is on the driver of the rear car to show that the collision was not occasioned by his fault.  However, each case must be decided upon its facts, and I have been referred to cases where substantial liability has been imposed upon the front driver and others where the following driver has been assessed one hundred percent of the claim.  I do not find this case similar to the authorities referred to me by counsel for the plaintiff, which include McMillan v. Siemens, [1994] B.C.J. No. 2546 (S.C.); Lloyd v. Fox (1991), 57 B.C.L.R. (2d) 332 (C.A.); and W.K. Enterprises Ltd. v. Stetar, [1976] B.C.J. No. 484 (S.C.).  In each of those cases the hazard created by the negligence of the driver who had stopped his vehicle was not apparent for either reasons of weather conditions or the design of the roadway until a point where the plaintiff’s vehicle was much closer than was the case here.

[16] Baker v. Cade, [1999] B.C.J. No. 239 (S.C.), has facts which are most analogous to the case at bar.  There, the collision involved two cars and a motorcycle.  The first car stopped in the middle of a bridge, and the car immediately behind that car came to a stop as well, without activating emergency flashers.  The plaintiffs were following behind on a motorcycle.  The stopped vehicles were approximately 800 feet away when the plaintiff crested the bridge and had a view of what was happening.  The plaintiffs were unable to stop the motorcycle and collided with the rear of the second vehicle, suffering significant injury.  The role of the driver of the second vehicle in that situation is analogous to that of the defendant in this case.  While Drost J. concluded that the driver of the second vehicle was negligent, he held that his negligence was not the proximate cause of the accident.  I reach the same conclusion here.

[17] The only distinguishing factor in this case is that the accident occurred at night.  However, I find as a fact that the area was well lit and the sight line of the plaintiff would have allowed him to the defendant’s stationary vehicle approximately a kilometre away.  Indeed, the plaintiff says he did see the defendant’s vehicle, but that he did not determine until it was too late that it was stopped.  Despite his description of the traffic, he took no evasive manoeuvres to avoid striking the rear of the defendant’s vehicle.  He believes he was some 20 to 30 yards away when he slammed on the brakes.

[18] Accordingly, the action is dismissed.

For more on this area of the law click here to read a case summary where a motorist was found partially at fault for being rear-ended.

When prosecuting a personal injury claim various orders can be made in the course of litigation.  In Civil matters in the BC Supreme Court such orders have to be ‘entered’ before crystallizing.    Until the order is entered the Court maintains jurisdiction to review, clarify or potentially vary the order.  If you wish to appeal an order it is important to have it entered first.  Reasons for judgement were released today by the BC Court of Appeal discussing this important practice point in the context of an ICBC Claim.

In today’s case (Chand v. ICBC) counsel for ICBC appealed an order from a BC Supreme Court Master and later Judge.  At the time the Appeal was filed the original order was unentered.  In her reasons for judgement Madam Justice Kirkpatrick of the BCCA said the following regarding the importance of having an entered order before launching an appeal:

[29] The salient feature that I wish to note at this point is that it appears the power described in Buschau is restricted to amending an entered order.  The reason for restricting the application to entered orders is obvious.  Until the order is entered, the judge or master may, on application, reconsider the order.  Here, as I have noted, Master Baker’s order was not entered until 27 May 2009.  Accordingly, it was open to the parties to return before Master Baker at any time before that date to have him clarify the meaning of the stay order….

[41] In my opinion, on an application in which a party is seeking to determine the intention of an entered order, it is essential that the entered order be before the court.  Similarly, on an appeal from a master’s order, the appeal should not proceed until the court has before it the entered order appealed from.  To proceed in the absence of the entered order gives rise to unnecessary uncertainty.  The court hearing the application or the appeal must know that the order under consideration is not susceptible to review or variation by the master who made the order because, of course, until the order is entered, the master is not functus officio.  The proper course in light of the unentered order would have been for the chambers judge to direct ICBC to immediately appear before Master Baker for the purposes of clarifying his order.

[42]         Once the order is entered, the court is functus officio.  In R. v. Roberts, 2004 BCCA 436, this Court said that “[i]t is well settled that the court remains seized of a matter and is not functus officio until the formal judgment of the court is entered and, until that time, the court has the power to reconsider, vary or revoke its judgment” (at para. 7).

[43]         Variation is expressly authorized by the Rules of Court, under Rule 41(24):

The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon.

[44]         There are limits as to what can be corrected under Rule 41(24). McLachlin and Taylor, British Columbia Practice, 3rd ed. by Frederick Irvine (Markham, Ont.: Butterworths, 2006), summarize these limits at 41-38 to 39:

Notwithstanding that R. 41(24) is much wider than the old “slip rule”, it cannot be used to amend or alter a substantive finding even though that finding might be demonstrated to be in error … R. 41(24) does not permit changing a final order where a judge has second thoughts about his order, or to permit the parties to provide fresh details on matters already before the court ….  Its proper use is (1) to rectify a slip in drawing the order which, if unamended, would produce a result contrary to the intention of the court or of the parties… or (2) to provide for a matter which should have been but was not adjudicated upon….  [citations omitted].

[45]         It does not appear that ICBC considered making an application under Rule 41(24).

[46]         In addition to Rule 41(24), the court has, through inherent jurisdiction, “the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court” (Buschau v. Rogers Communications Inc., 2004 BCCA 142, 237 D.L.R. (4th) 260 at para. 26, leave to appeal ref’d [2004] S.C.C.A. No. 221).  In the absence of evidence of irrevocable steps in reliance or undue prejudice, the court should correct the order (para. 27).  It is not in the interests of justice for an order to stand that does not reflect the parties’ true entitlements (para. 27).

[47] In the case at bar, no one seems to have addressed their mind to the fact that Master Baker’s order was unentered.  Since then, of course, the order has been entered and I consider that this Court has jurisdiction under s. 9(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to amend the order and exercise the jurisdiction invested in the Supreme Court.  Proceeding in this way avoids further litigation and expense, far too much of which has been wasted in this case to date.

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.

A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).

Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.

Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.

If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.

For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”

It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?

Further to my numerous previous posts on Low Velocity Impacts (LVI Claims) reasons for judgement were released today by the BC Supreme Court dealing with the relevance of photographs depicting minimal vehicle damage in Injury Litigation.

In today’s case (Deventer v. Woods) the Plaintiff was involved in 3 rear-end collisions.  Fault was admitted for all three crashes.   The Plaintiff claimed she was injured as a result of these crashes.  The matter was set down for a Jury Trial (ICBC normally sets LVI cases for Jury Trial) and proposed to put photos which ’show very little damage to an of the cars involved’ to the Jury.

The Plaintiff objected arguing that the photos were not relevant.  Madam Justice Fenlon disagreed with the Plaintiff and allowed the photos to be put to the Jury.  In coming to this conclusion Madam Justice Fenlon referred to and summarized 2 previous authorities dealing with this issue at paragraphs 8-13 and went on to hold as follows:

[14] In any event, I am of the view that photographs showing the extent of the damage to the vehicles in this case are relevant and therefore admissible. They are relevant because it is a matter of common sense and common understanding that the greater the force with which two vehicles collide, the more likely it is that occupants of those vehicles will be injured. The relationship between increased force and damage and increased probability of injury does not mean that parties involved in lower impact collisions that do not cause very much damage to the vehicles involved cannot suffer significant injuries. Many cases have recognized that serious injuries can result from collisions involving little or no damage, as Mr. Justice Thackray observed in Gordon.

[15] In Brar v. Johal, 2002 BCSC 150, Mr. Justice Cohen, at para. 11, held that the onus would be on the defendant to lead engineering or medical evidence to support the submission that a plaintiff’s injuries are inconsistent with the force generated by the impact between two vehicles.

[16] The relevance of photographs showing the extent of damage to the plaintiff’s and defendants’ vehicles can be tested by considering photographs of highly damaged vehicles. It would be hard to imagine plaintiff’s counsel in such a case arguing that photographs of the damage were not relevant to the issue of whether the plaintiff suffered injuries in the accident.

[17] I have considered whether the probative value of the photographs in this case is outweighed by their prejudicial effect on the jury’s assessment. For the reasons set out inMakara by Mr. Justice Barrow, I am of the view that such prejudice can be adequately addressed by way of appropriate instructions to the jury. Such directions would not simply be to ignore the photographs, as plaintiff’s counsel argued, but rather, a direction to put the pictures into the context of the evidence as a whole. The pictures are one piece of evidence about the impact and the vehicles, as is the plaintiff’s evidence.  There would also likely be a direction that the fact that no or little damage has occurred to vehicles does not mean that a plaintiff cannot be injured.

[18] In conclusion on this issue, the photographs are admissible, subject to objections about their authenticity or accuracy.

Another intresting aspect of this judgement is the Court’ discussion of the Plaintiff’s financial status.  The Defendants wished to highlight certain elements of the Plaintiff’s finances in support of an argument that  ”such information is relevant in assessing the quantum of damages for future wage loss because that information provides the context within which the jury must determine whether the plaintiff would have worked full-time in the future if the injuries sustained in the accident had not occurred.”

Madam Justice Fenlon agreed that such evidence is admissible in addressing a claim for future wage loss holding that:

[35] The plaintiff argues that the cases cited by the defendants in which a plaintiff’s financial circumstances were considered in relation to future wage loss were not jury cases. However, if the plaintiff’s financial circumstances are relevant to the assessment of future wage loss in a judge alone case, they are also relevant in a jury trial. The only additional question on a jury trial is whether the prejudicial effect of such evidence outweighs its probative value. The concern raised by plaintiff’s counsel, and it is a real concern, is that the jury may assume that because the plaintiff is relatively well-off she does not need to be compensated for future wage loss and they may reduce their awards for general and special damages as well. That would indeed be improper, but as I stated in relation to this issue on the admissibility of the photographs, I am of the view that the jury can be properly instructed to avoid this error and can be trusted to properly assess damages.

[36] In the circumstances of this case, I find that the probative value relating to the life insurance proceeds and the absence or existence of a mortgage outweighs the prejudicial effect of such evidence. However, I also find that the value of the new family home has such little probative value in relation to the propensity of the plaintiff to be working full-time or part-time that it is outweighed by the prejudicial effect of such evidence. I would therefore disallow that evidence.

[37] In conclusion on this issue, evidence relating to life insurance proceeds received, the payout of the mortgage on the family home at the time as a result of another life insurance policy, the existence of a current mortgage, and other evidence of that nature is admissible. Evidence regarding the value of the home the plaintiff is currently living in is not.

I’ve previously written about the significant financial consequences that can come with being in breach of your ICBC Insurance and reasons for judgement were released today by the BC Supreme Court, Penticton Registry, demonstrating the consequences of ‘breach’ in action.

In today’s case (Booth v. ICBC) the Plaintiff was the registered owner of a Camaro.   When purchasing her insurance with ICBC she declared that she was the principle operator.  In 2004 her son was driving the Camaro and was involved in an accident.  He injured a passenger in another vehicle in this collision.  ICBC payed out over $37,000 in settlement of the passenger’s injury claim.

ICBC came to the conclusion that the Plaintiff misrepresented who the principle operator was when she purchased insurance and concluded that the Plaintiff’s son was in fact the principle operator of the Camaro.  ICBC told the Plaintiff she was in breach of her insurance and demanded repayment of the $37,000.  The Plaintiff sued ICBC for a declaration that she was not in breach of her insurance.

Mr. Justice Barrow sided with ICBC and concluded that the son in fact was the principle operator.  In so concluding he summarized the law relating to principle operator misrepresentations as follows:

[5] The phrase “principal operator” is defined in s. 1 of the Insurance (Motor Vehicle) Regulation, B.C. Reg. 447/83, as follows:

“principal operator” means the person who will operate the vehicle described in an application for a certificate for the majority of the time the vehicle is operated during the term of the certificate;

[6] Section 19 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231, deals with forfeiture of claims. It provides, in part, as follows:

19(1) If

…

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

all claims by or in respect of the applicant or the insured are rendered invalid…

[7] It is common ground that an applicant for an owner’s certificate by which insurance is acquired under the Act is required to identify the principal operator of the insured vehicle. It is also common ground that the defendant bears the burden of proving, on a balance of probabilities, that the insured knowingly misrepresented a fact contemplated by s. 19(1)(b). (See generally Gill v. Insurance Corp. of British Columbia, 2006 BCSC 1397 at para. 20, and Rai v. ICBC, 2005 BCSC 92 at para. 3.)

[8] Because an assertion that an insured knowingly misrepresented a material fact is tantamount to a claim of fraud, until the Supreme Court of Canada’s decision in F.H. v. McDougall, 2008 SCC 53, it was thought that in order to establish such a claim, it was necessary that it be proven on something more than a mere balance of probabilities and/or that the evidence said to support it be subjected to a heightened scrutiny (see Bevacqua v. I.C.B.C., 1999 BCCA 553 at para. 44). In F.H., the court concluded at para. 40 that:

…it is time to say, once and for all in Canada, that there is only one civil standard of proof at common law and that is proof on a balance of probabilities. Of course, context is all important and a judge should not be unmindful, where appropriate, of inherent probabilities or improbabilities or the seriousness of the allegations or consequences.

[9] Finally, whether an insured has knowingly misrepresented a material fact is to be determined on the basis of the circumstances at the time the policy of insurance was issued (see s. 19(1)(b) and Rai at para. 14).

He went on to conclude that the son was the likely principle operator.  This case is worth reviewing in full for anyone interested in the types of considerations the courts make when making such a determination and in seeing the evidence that ICBC can lead in proving who the principle operator of a vehicle is.

Misrepresenting the principle operator of a vehicle may save a few bucks but this case gives over 37,000 reasons why doing so is not a good idea.

Further to my previous postings on Rule 68 in ICBC and other Injury Claims, the Rules mandatory nature was further developed by the BC Supreme Court today.

First a brief background.  Rule 68 is a ‘proportionality’ based rule which limits and alters the types of pre-trial procedures available to litigants in the BC Supreme Court for certain types of cases.  Rule 68 also takes away the right to trial by jury for cases where the rule applies.

Subsection 2 of Rule 68 sets out when the Rule applies.  One type of action subject to Rule 68 is where a Plaintiff claims for pecuniary and non-pecuniary loss for less than $100,000.  This includes many ICBC and other Injury Claims.

Recent Court Decisions have interpreted Rule 68 as being mandatory when the factors in Rule 68(2) apply.  In the case of Foster v. Westfair Properties (Pacific) Ltd. Master McCallum of the BC Supreme Court held that:

Rule 68 is mandatory and requires that actions qualifying as expedited actions proceed under the provisions of the rule.  The absence of the required endorsement is an irregularity that may be remedied by amendment.  The commencement of a proceeding without the Rule 68 endorsement does not change the character of the proceeding to permit process outside the limits of the rule.

Reasons for judgement were released today by the BC Supreme Court illustrating just how far our Courts can go in applying the mandatory nature of this rule.

In today’s case (Uribe v. Magnus) the Plaintiff was allegedly injured in 2007 BC Car Crash.  The Plaintiff started a lawsuit but did not make the Claim subject to Rule 68.  As the lawsuit progressed the Defendant took advantage of the pre-trial steps available for lawsuits filed outside of Rule 68 including examinations for discovery.  Furthermore none of the Rule 68 pre trial requirements were adhered to.

The Defendant took out a Jury Notice and even paid the necessary Jury Fees.  The Plaintiff then valued his claim below $100,000 and as the trial neared brought an application for an order that the lawsuit was ’subject to rule 68′.  The defendant opposed this motion arguing that the motion was brought too late in the lawsuit and that it would result in significant prejudice including the loss of right of trial by jury.

The Court granted the motion and noted that “there is no timiing limitation in (rule 68)“.   Master Caldwell went on to make the following comments:

The concept of proportionality is now formally ingrained in our law by the terms of Rule 68.  It is hard to imagine that a simple claim which the plaintiff’s counsel himself admits will not exceed $50,000 and which more likely falls in the $30,000 to $40,000 range can justify the overall expense of a three day jury trial.  While I accept the submissions of defendant’s counsel that the defendant has been prejudiced by the late date of the plaintiff’s application, the denial of a jury trial, the fact that they have prepared for a jury trial and the fact that they have had to undertake various steps and procedures which would not have been necessary had the matter been commenced subject to Rule 68 or placed into that rule at an earlier date I am satisfied that these issues can be compensated for by the appropriate order of costs to the defendant while at the same time maintaining and protecting the purpose and mandatory nature of Rule 68.

The Court went on to  balance some the Defence concerns by ordering that the Plaintiff be responsible for the costs for ‘all procedures undertaken to date which would not have been required or allowed under Rule 68“.  This case is worth reviewing in full for anyone interested in the development of the concept of ‘proportionality’ in BC Supreme Court Injury Litigation.

As readers of this blog may know, the current BC Supreme Court rules are being repealed and replaced with new Rules next summer.  Rule 68 will be repealed and replaced with Rule 15.  Rule 15 also utilizes the concept of proportionality and today’s case may be telling in the direction BC Courts will take under the new Rules when applying this concept to injury litigation.

I’ve blogged many times about ICBC’s LVI program.  This program is not unique to ICBC.  Many auto insurers have a similar program where they deny compensible injury in tort claims where little vehicle damage occurs in the collision.

The difficulty with the LVI defence, however, is that to successfully run it the defence lawyer is basically inviting the court to find that the Plaintiff is lying about or exaggerating their injuries.  There have been many LVI cases that have gone to trial recently and the overwhelming judicial response to these was to find that compensible injury in fact did occur. Reasons for judgment were released today dealing with 2 LVI cases and such a finding was made again.

In today’s case (Loik v. Hannah) the Plaintiff was involved in 2 collisions in 2006.  Fault was admitted in each case leaving the Court to deal with the issue of quantum of damages (value of the claims).  The cases were defended on the LVI basis where the defence lawyer denied that the Plaintiff was injured in either of the accidents.

Mr. Justice Goepel rejected this argument and found that, notwithstanding the minor nature of these collisions, the Plaintiff was indeed injured.  The court’s useful analysis is set out at paragraphs 34-36 which I set out below:

[34] Ms. Loik claims damages arising from injuries she alleges to have suffered in what were two admittedly low velocity conditions. If the plaintiff was injured in the accidents, the injuries have persisted much longer than one would normally expect. In determining this case, the comments of Chief Justice McEachern, as he then was, in Price v. Kostryba (1982), 70 B.C.L.R. 397 at 398-99 (S.C.), must be kept in mind:

Perhaps no injury has been the subject of so much judicial consideration as the whiplash. Human experience tells us that these injuries normally resolve themselves within six months to a year or so. Yet every physician knows some patients whose complaint continues for years, and some apparently never recover. For this reason, it is necessary for a court to exercise caution and to examine all the evidence carefully so as to arrive at fair and reasonable compensation. …

In Butler v. Blaylock, decided 7th October 1981, Vancouver No. B781505 (unreported), I referred to counsel’s argument that a defendant is often at the mercy of a plaintiff in actions for damages for personal injuries because complaints of pain cannot easily be disproved. I then said:

I am not stating any new principle when I say that the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by a wrongdoer. But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[35] In this case, as in most soft tissue injury cases, the case largely turns on the plaintiff’s credibility. The evidence of her injuries is based almost entirely on her subjective reporting to her doctors and to the Court. In such circumstances, it is important to consider whether the evidence of the witness accords with the circumstances that are proven on a balance of probabilities:  Faryna v. Chorny (1951), [1952] 2 D.L.R. 354, 4 W.W.R. (N.S.) 171 (B.C.C.A.).

[36] I find the plaintiff to be a credible witness. Her evidence accords with the surrounding circumstances. Prior to the accident, she was living a healthy active life, participating in many activities. She no longer is able to do so. I find that the reason she cannot do so is the ongoing pain she continues to suffer as a result of the motor vehicle accidents.

Mr. Justice Goepel found that the Plaintiff suffered soft tissue injuries in these collisions “which have caused her ongoing problems with her neck, back and shoulders.”  He went on to value the Plaintiff’s non-pecuniary damages at $25,000.

In addition to a useful discussion about LVI Accidents, the court went on to discuss a topic that I wrote about yesterday, namely the connection between the value of a claim and the numnber of medical appointments attended.

The Defendant argued that since the Plaintiff did not seek medical treatment between November 2006 and April 2008 her injuries had fully recovered.  Mr. Justice Goepel rejected this argument finding that “She thought she was getting better and continued to do the exercises that had been prescribed for her. When, over the next 18 months, her condition did not improve, she sought further medical treatment. In the circumstances of this case, I find that the failure to seek medical treatment does not establish that the plaintiff had recovered from her injuries by November 2006.”

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff damages for accident related injuries.

In today’s case (Cheng v. Kamboz) the Plaintiff was involved in a 2005 BC Car Crash. The other motorist admitted fault.  The issue the court dealt with was quantum of damages (value of the Plaintiff’s claim).

Mr. Justice Myers found that the Plaintiff suffered from pre-existing chronic pain at the time of the crash.  Specifically he found that the Plaintiff suffered from headaches, neck pain, shoulder pain, hip pain and low back pain.  Notwithstanding these pre-accident complaints the Court found that the Plaintiff’s pre-existing “chronic pain” was transformed into a “chronic pain syndrome” as a result of the collision.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $45,000 for this aggravation Mr. Justice Myers reasoned as follows:

[39]    I find that before the accident Ms. Cheng was suffering – to a lesser extent – from all the pain of which she now complains.  Ms. Cheng says that she had no hip pain before the accident; however, that is not what she told Dr. Feldman when she mentioned what she referred to as being symptomatic of myasthenia gravis, to which I referred above at para. 29.  Whether it was caused by the myasthenia gravis is, in this context, beside the point.

[40]    Ms. Cheng was suffering from headaches prior to the accident in question.  While she says they are more frequent now, the difference is minimal.  Further, they are often brought on by stress at work and that is a variable which has nothing to do with the accident.

[41]    That said, the accident exacerbated the injuries and escalated chronic pain into chronic pain syndrome.  Causation for the exacerbation and chronic pain syndrome has been shown.  The harm caused by the defendant is divisible from the harm caused by the prior accidents and the plaintiff’s pre-existing condition.  To be clear, this is not the type of case, as was Athey v. Leonati, [1996] 3 S.C.R. 458, in which a pre-existing condition of the plaintiff made him more amenable to a specific injury (a disc herniation).

[42]    Damages are to be assessed on the basis that Ms. Cheng is to be put in the position she was before the accident, but not in a better position.

[43]    Ms. Cheng referred me to cases in which the damage range was between $80,000 and $100,000.  The defendants’ cases ranged from $35,000 to $60,000.

[44]    The injuries will not result in a drastic change of lifestyle for Ms. Cheng.  As I have noted, she was not physically active before the accident.  None of the doctors have opined that she will not be able to resume the limited walking she was doing before the accident.  The same can be said with respect to going to the theatre.  The migraines were present before the accident and her reduced playing of video games because of the migraines cannot be blamed to any substantial degree on the accident.

[45]    On the other hand it must be recognised that the accident did cause her chronic pain syndrome and that it is likely to continue for some time.

[46]    In my view, the proper assessment of damages for the exacerbation of Ms. Cheng’s prior injuries and the addition of the chronic pain syndrome is $45,000.