If you are the victim of a hit and run collision in British Columbia you can sue ICBC directly in certain circumstances to seek damages in tort.  This is so because of Section 24 of the Insurance (Vehicle) Act which creates certain compensation rights for victims of hit and runs.

ICBC’s monetary liability under Section 24 arising our of the same accident is $200,000 all inclusive.  What happens when multiple people are injured in a hit and run claim and their claims exceed $200,000?  How does ICBC distribute the funds from this fixed pool?  Reasons for judgement were released today by the BC Supreme Court dealing with this narrow but important issue.

In today’s case (Thoreson v. ICBC) the Plaintiff and his passenger were injured in a 2002 motorcycle accident near Vernon, BC.  Their motorcycle was run off the road by an unidentified driver.    ICBC was sued under s. 24 and after trial the Unidentified driver was found 85% responsible for the crash and the Plaintiff driver was found 15% responsible.

Both the Plaintiff and his passenger settled the value of the claims.  The Plaintiff’s claim was settled for $125,000 and the passenger’s claim for $935,521.  To satisfy the damages both the Plaintiff and the passenger claimed damages from ICBC under section 24.  Mr. Justice Cole of the BC Supreme Court was asked determine how much of the $200,000 available in the section 24 ‘pool’ the Plaintiff was entitled to.

Ultimately the Court noted that this pool of money needs to be shared proportionately to their claims leaving the Plaintiff with only 11% of the pool or some $23,000.  In reaching this conclusion Mr. Justice Cole provide the following reasons:

[16] Having found that (the passenger) made a claim under s. 24 of the Act, I am also satisfied that ICBC made a payment pursuant to that section. ICBC did not blur the distinction between the coverages. Even if she wrote a demand letter to Excellent Adventures Ltd., what (the Plaintiff) does in terms of trying to collect her money cannot, in my view, affect the rights and obligations of ICBC. ICBC’s involvement with respect to the 85% liability of the unidentified driver was statutory; as a nominal defendant pursuant to the statute, not as a real defendant. Therefore, their obligations to pay are determined pursuant to the statute. Pursuant to s. 24(8), ICBC was expressly required to satisfy the judgement within the authorized limits and ICBC did so.

[17] The plaintiff also argues that s. 24 is a “social welfare” type of section and therefore should only come into play after (the passenger) has exhausted all the other available avenues of compensation. However, there is nothing in the wording of s. 24 to suggest that payment under s. 24 is secondary or excessive coverage only.

[18] The purpose of s. 24 has been set out in two cases:  Alfonso v. Insurance Corp. of British Columbia (1992), 63 B.C.L.R. (2d) 378, 88 D.L.R. (4th) 689 (C.A.) at 698, where Madam Justice Rowles commented in respect to s. 23 [now s. 24]:

The purpose of the statutory scheme created by ss. 23 and 46 of the Insurance (Motor Vehicle) Act is to provide some measure of compensation to those who have suffered injury caused by “hit and run” collisions where no common [sic] law remedy is available…

[19] In Fundytus v. Insurance Corporation of British Columbia (1989), 59 D.L.R. (4th) 131, Mr. Justice Gow states as follows, at 139:

The intent does not embrace the monetary succour provided by the “safety net” of s. 23 of the Insurance (Motor Vehicle) Act. I.C.B.C. the nominal defendant is not “the party liable” within the meaning of s. 10(2), (6) and (10) but the agency through which the person who has a cause of action as defined by s. 23 may as a matter of social welfare policy obtain some measure of monetary solace…

[20] While this is a correct statement of the policy considerations underlying s. 24, the legislation makes it very clear that ICBC must pay pursuant to s. 24(8). There is no discretion in my view. The only deductions available are for an insured claim, pursuant to s. 106 of the Regulations. This does not include a deduction for payment or amounts that could be recovered from a liable defendant or insurance payable to a liable defendant, due to vicarious liability as indemnity accrues to the tortfeasor not the claimant.

[21] Because ICBC was required to pay (the passenger) under s. 24(8) and because those payments were made, the entirety of the fund does not remain untouched and the plaintiff must share in the distribution of those funds. Pro-rata distribution is the norm, save for exceptional circumstances: I.C.B.C. v. Pozzi, 2004 BCCA 440 at para. 22, 244 D.L.R. (4th) 641. Exceptional circumstances have been found to include when an insurer makes voluntary payments under the policy: Stobbe v. Allwood Estate (1983), 81 B.C.L.R. (2d) 117, 15 C.C.L.I. (2d) 305 (S.C.). However, in the present case (the passenger) had already obtained a judgment at the time of payment. Payment on a judgment does not qualify as a voluntary payment: Henry v. Zurich Insurance Co. (1998), 49 B.C.L.R. (3d) 195, 50 C.C.L.I. (2d) 35 (S.C.). This is not a case for the discretion, to deviate from the normal distribution of funds, to be exercised.

[22] Having found that (the passenger) made a claim under s.24 of the Act and received payment pursuant to that section, this then limits the plaintiff’s recovery from ICBC pursuant to section 24 of the Act, to his pro-rata share of the $200,000 fund…

[24] The plaintiff Thoreson settled his claim for the amount of $125,000 net of his 15% liability assessment, and (the passenger) obtained judgement in the amount of $935,521.79 including costs. The following is the calculus for a pro-rata distribution of the fund:

[25] In conclusion, Mr. Thoreson is entitled to recover $23,573.30 from ICBC pursuant to s. 24 of the Act.

I should point out to my readers that there are special limitation periods and defences available in Section 24 lawsuits and these are worth reviewing when advancing such a claim.   If you are the victim of a hit and run in BC and are not familiar with these specific issues you should seek legal advice immediately to ensure your rights are protected due to the technical nature and limitations of section 24 compensation claims.

When a person is injured through the fault of another in British Columbia the injured party generally has the right to make a claim for compensation against the at fault party through our Civil Litigation system (ie. a tort claim through the Courts).

There are some exceptions to this and one such exception is found in section 10 of the Workers Compensation Act.   Generally speaking, Section 10 prohibits a worker who is injured in the course of employment from suing a responsible party who was also in the course of employment at the time of the injury.  (I should point out that there are some exceptions to this general rule).  This statutory bar can be a complete defence to a tort claim arising from a motor vehicle accident and reasons for judgement were released today by the BC Supreme Court demonstrating this.

In today’s case (Dhanoa v. Trenholme) the Plaintiff was injured in a 2006 BC Car Crash.    She was “walking through a parking lot owned by her employer when she was struck by the Defendant who was driving a motor vehicle at that time and who also works for the same employer“.

The Plaintiff sued the Defendant for her injuries and damages.  The Defence lawyer, in responding to the claim, raised s. 10 of the Workers Compensation Act.  When this defence is raised in a BC Lawsuit the issue of whether both parties were workers must be decided by the Workers Compensaiton Appeal Tribunal (WCAT).  WCAT decided that both Plaintiff and Defendant were in the course of their employment when the crash happened.  With this decision in hand the Defendant’s lawyer applied to dismiss the lawsuit and succeeded.  In dismissing the claim Mr. Justice Cole awarded the Defendant full costs of defending the lawsuit.

In doing so Mr. Justice Cole made the following useful points with respect to the practical procedural consequences that are created when a s. 10 defence is raised in an ICBC Injury Claim”

[11] The case law is clear that merely pleading a s. 10 defence does not itself bar the litigation. The WCAT has the exclusive jurisdiction to determine the “worker vs. worker” issue and the action remains ongoing unless and until the WCAT renders a decision that would bar the action. I am of the view that if the plaintiff does not want the defendant to run up costs in the meantime, the plaintiff is at liberty to make an application for a stay of the proceedings until the Workers’ Compensation Board issue is decided…

[18] Based on the foregoing review of the relevant authorities, it is clear that the WCAT proceeding is a step within the action which is mandated by legislation. A stay of proceedings pending this step, however, is not automatic when the s. 10 defence is pled: Hommel, at paras. 38 and 46. Therefore, to presume there is a stay and say counsel should not be taking steps for the upcoming action is wrong in law. Unfortunately, the decision in Khare does not appear to consider the authorities that were provided to the Master in the present case and because the decision in Khare was delivered orally without the opportunity to fully consult authority, I am not bound by it: Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, 13 W.W.R. (N.S.) 285 (B.C.S.C.).

[19] I am of the view that because each case is unique, it would be wrong to set a blanket rule that a party claiming costs cannot recover on any proceedings initiated by them after a s. 10 Workers’ Compensation Board defence is raised, as it would be too draconian. There may be legitimate reasons to take steps in a proceeding and if those steps are unfair, either party can apply for a stay.

This case goes to show that, where the s. 10 WCB defence is raised in an ICBC Injury Claim it may be in the parties best interests to have the issue resolved early in the process to minimize costs consequences for unsuccessful party.

Reasons for Judgement were released today by the BC Supreme Court, Vernon Registry, (Donnelly v. Durham) awarding a Plaintiff just over $67,000 in total damages as a result of a BC Car Crash.

The Plaintiff’s collision occurred in 2005 and was a significant rear end impact that resulted in $10,000 of damage to her vehicle.  The issue of fault was admitted by ICBC’s lawyer leaving the court to deal with the issue of quantum of damages.

The Court found that the 52 year old plaintiff was “healthy and active with no history of musculoskeletal injuries” before the crash.  Mr. Justice Cole found that the Plaintiff suffered various injuries as a result of the crash which continued to limit her by the time of trial.    The Court accepted the evidence of Dr. Apel, a specialist in physical medicine.  Mr. Justice Cole summarized her evidence as follows:

[23] Dr. Apel, a specialist in physical medicine and rehabilitation, in a report dated February 8, 2008, diagnosed the plaintiff with mechanical lower back pain, pain in the buttocks, mechanical pain of the thoracic back, pain in the back of the thigh and in the area of the inside of the knee.

[24] In regards to the plaintiff not recalling hitting her knee in the accident, Dr. Apel explained that the knee is connected to the hip and buttock by way of the IT band and the tension in the plaintiff’s hip and lower back could cause malalignment of the thigh which can then cause pain to the inside of the right knee.

[25] Dr. Apel was of the view that the plaintiff’s injuries and symptoms are due to the collision and considering the negative prognostic factors, her age, chronicity of symptoms, and lack of improvement to date, that the prognosis for complete symptom resolution is guarded.

In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Cole stated as follows:

[33] I am satisfied that the plaintiff was a credible witness, that she had no pre-existing injuries that were ongoing at the time of the motor vehicle accident. I also accept her evidence with respect to her current symptoms, and more particularly with respect to her right knee and I am satisfied that her right knee was injured in the motor vehicle accident and therefore, but for the defendant’s negligence, her injuries would not have occurred.

[34] As a result of the motor vehicle accident, the plaintiff sustained soft tissue injuries to her neck, back, right hip and right knee with radiating pain into her foot. She has also suffered from persistent painful headaches. Her symptoms, besides the radiating pain, have plateaued and her prognosis for any further recovery is guarded.

[35] I am satisfied that the plaintiff is a stoic individual who has done her best to work through her pain and that due to the length of time that she has had difficulties with her back and headaches, a long term prognosis is guarded…

[38] I find that the appropriate award for non-pecuniary damages is $55,000. This includes compensation for the plaintiff’s loss of future housekeeping capacity, which I found to be significant. Entertaining, cooking and keeping a clean house were some of the plaintiff’s priorities and activities that she derived a great deal of pleasure from.

As I’ve previously written, section 86 of the Motor Vehicle Act makes owners or lessees of vehicles responsible for any damage or loss caused by the operation of their vehicle by an individual to whom consent was given.

Reasons for judgement were released today by the BC Supreme Court interpreting the meaning of ‘consent’.  In today’s case (Morris v. Morris) the Plaintiff was injured when riding as a passenger in a vehicle driven by his brother.  The vehicle was rented from Enterprise Rent-A-Car.   The Plaintiff sued the driver and the rental car company.

The vehicle, however, was not rented to the Plaintiff’s brother, but rather his mother.  The rental contact stated “No Other Driver Permitted“.   Despite this restriction, after renting the vehicle the Plaintiff’s mother let the Plaintiff’s brother drive the vehicle.

The issue at trial was whether, in these circumstances, Enterprise Rent-A-Car could be held liable as registered owner.  A recent case (McEvoy v. McEachnie) held that a registered owner can be held liable in similar circumstances (click here to read my summary of the McEvoy case).  In today’s case, however, Mr. Justice Cole refused to follow the precedent set in McEvoy finding that the judge in that case “failed to consider binding authority“.  In finding the rental company not liable as having not consented to the driver operating the vehicle Mr. Justice Cole summarized the law and distinguished the McEvoy case as follows:

[31] The most recent case from British Columbia dealing with the interpretation of implied consent under s. 86 of the Act, and the plaintiff argues I am bound by that decision, isMcEvoy v. McEachnie, 2008 BCSC 1496 [McEvoy]. In that case, a father gave his daughter consent to drive his vehicle but made it expressly clear that no other drivers were permitted. The daughter subsequently allowed her friend to drive the vehicle, because she was intoxicated, and an accident ensued. In finding the father liable, the Court appliedBarreiro, a case where a rental car employee consented to a vehicle being rented by an underage driver, contrary to company procedure, and interpreted it, at para. 32, to stand for the proposition that:

[32] … so long as the transfer of car keys from owner to second party is done by an exercise of free will, and the second party gives the keys to a third party by free will, the owner will be deemed to have consented to the third party’s possession of the car. That will be the result even though the owner and the second party had an understanding that the third party was not to ever get possession of those keys.

[32]         The Court in McEvoy concluded that, except for the fact that the father did not obtain a financial benefit from the friend’s possession of the vehicle, the case was not distinguishable from Barreiro. In the present case, other than the fact that the agreement forbidding other drivers was written, rather than oral, the facts cannot be distinguished  from McEvoy. Enterprise freely gave the keys to Ms. Kauth, she freely gave the keys to Mr. Morris, despite expressly agreeing that there would be no other drivers. Enterprise would, on the logic of McEvoy, be taken to have consented to Mr. Morris’ possession of the vehicle and therefore, Enterprise would be vicariously liable pursuant to s. 86 of the Act for any liability that Mr. Morris may have for this accident.

[33]         On its face, it would appear that this decision would be binding on this Court, because the facts cannot be differentiated merely because the agreement in McEvoy was oral and not written. In Hansard, Spruce Mills Ltd., Re (1954), 4 D.L.R. 590 at 592, 13 W.W.R. (N.S.) 285 (B.C.S.C.) [Hansard], the Court held that a trial judge should follow the decisions of his brother judges of the same court unless subsequent decisions have affected the validity of the impugned judgment; it is demonstrated that some binding authority in case law or some relevant statute was not considered; or the judgment was unconsidered, where an immediate decision is given without the opportunity to fully consult authority. If none of these situations exist, barring a distinguishing feature between the facts, a court would be correct in following decisions of a court of the same level.

[34] On the basis of the test set out in Hansard, McEvoy in my view is not binding on this Court as it failed to consider binding authority. In Godsman, Smaldino, Prasad and Louisthe Court refused to find consent where it would not have been given in the circumstances. McEvoy overlooks these decisions and does not consider this test.

[35] The Court instead held the father liable because they interpreted Barreiro to mean that if keys are transferred by free will to the daughter, the father is deemed to consent to subsequent transfers of possession including his daughter’s friend’s possession. However, in Barreiro the company transferred possession to the rental car employee and gave the employee the authority to transfer possession to people wishing to rent the vehicle. Therefore the employee had authority to transfer the vehicle subject to following proper procedures, but in McEvoy the daughter lacked authority to transfer the vehicle.

[36] Furthermore, the Court in McEvoy relied upon Morrison to support the finding of consent. In Morrison, consent was given subject to conditions upon the authorized driver, namely that the company vehicle was not to be operated by an employee for personal use. These conditions were breached, but the Court held that the conditions did not vitiate the consent. In McEvoy, the Court interpreted “no other drivers” as a condition. However, in my view there is a distinction between no consent at all and consent subject to conditions. The Court should first find implied consent exists on all the circumstances and then apply Morrison to any conditions added to that implied consent: K.T. v. Tran, 2007 ABCA 13, 280 D.L.R. (4th) 142.

[37] Had the Court in McEvoy considered Godsman, Smaldino, Prasad and Louis, the result may have still been the same on the second ground for finding consent, stated by Mr. Justice Rogers, but not on the first. Based on Godsman, Smaldino, Prasad and Louis, consent can only be implied if it would have been granted as a matter of course in the circumstances. In McEvoy, the father’s purpose in telling the children to not let others drive his cars was not to limit his statutory liability as the car’s owner, but because he trusted his kids but not their friends and he wanted to keep his children and his cars safe. It could be argued that the father in McEvoy would have consented in the circumstances to the friend driving because his daughter was intoxicated and he would want the car and his daughter home safely. On the present facts, like in Prasad, it is hard to imagine that Enterprise would have given consent in the circumstances.

[38] The trend in our jurisprudence tends to be more restrictive than the broad policy approach that is taken in some United States jurisdictions and in some degrees by the Alberta courts. I am satisfied that the test for implied consent in British Columbia is whether the owner would have consented in the circumstances:  Godsman, Smaldino, Prasad and Louis. Based on the facts of the present case, there was no express consent given by Enterprise to Mr. Morris and in my view, it is clear that consent would not have been given in the circumstances. Enterprise did everything possible to limit its liability and if its liability is to be extended in any event, to prefer the protection of third parties, then that is the job of the Legislature to rewrite the wording of the statute.

[39] I therefore dismiss the action against the defendant Enterprise and they are entitled to their costs.

I understand that the McEvoy case is going to be heard by the BC Court of Appeal in the near future and the law of ‘consent’ with respect to registered owner liability should hopefully be more clear after they weigh in on this issue.

Reasons for judgment were released today by the BC Supreme Court, Vernon Registry, awarding a Plaintiff just over $142,000 in total damages as a result of a 2005 BC Car Crash.

In today’s case (Quinlan v. Quaiscer) the Plaintiff suffered various injuries including PTSD and a Chronic Pain Disorder.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $90,000 Mr. Justice Cole summarized the Plaintiff’s injuries and their effect on her life as follows:

[61] There is evidence that the plaintiff has suffered from depression off and on since 1994, including post-partum depression after the births of her children. Additionally, the plaintiff has had a tumultuous relationship with her now ex-husband, which has certainly affected her emotional state. There is evidence, however, that the plaintiff’s prescription for depression medication a few months prior to the Accident was not filled. Dr. Pirolli stated in her report that the plaintiff’s current emotional problems include PTSD and low mood. The PTSD, as I have stated above, is a consequence of the Accident. Regarding the plaintiff’s low mood, Dr. Pirolli stated that it could not “be directly attributed to the accident itself. There is the possibility, however, that any psychological issues present at the time of the accident may have been exacerbated by the accident and its sequelae”. In my view, the plaintiff’s depression prior to the Accident was not significant, and I find that the plaintiff was not suffering from debilitating depression at the time of the Accident.

[62] As mentioned above, the plaintiff’s cuts and bruises resolved within three to six months after the Accident. She is left with a permanent one-inch scar on her elbow, a three and a half inch c-shaped scar on her left knee, and a dark scar on her left shin. Her nose was broken and she had dizziness and headaches. As described in the medical evidence above, the plaintiff’s right wrist pain, right shoulder and right chest area injuries have persisted. Though Dr. Travlos was of the view that the plaintiff would continue to improve over the next 18 months (from his report of April 2007), he stated: “To what extent she recovers is difficult to say at this time and a definitive prognosis cannot be made”. The plaintiff’s problems have not improved to any great extent over the course of the 18 months following that report.

[63] Dr. Travlos was of the view that the plaintiff’s problems of chronic pain syndrome related to the diffused soft-tissue pain that the plaintiff suffered in the right arm and shoulder. In cross-examination he stated that it was unlikely that the plaintiff will fully recover and there is no guarantee that participation in treatment recommendations will result in improvements of those symptoms. The plaintiff’s injuries restrict her ability to participate in physical activities that she formerly enjoyed, such as skiing and baseball. I believe, however, that part of the reason the plaintiff does not participate in these sports is because of a lack of financial resources.

[64] I am satisfied that taking into consideration the plaintiff’s PTSD and her multiple injuries, an appropriate award for non-pecuniary general damages would be $90,000.