Tuesday, September 16, 2014

Non-Pecuniary Damages Reduced for Failure to Mitigate

The BC Supreme Court recently released its reasons for judgment, in the case of Rasmussen v. Blower 2014 BCSC 1697, where the Court ultimately reduced the plaintiff’s award for non-pecuniary damages by 20% for failure to mitigate his damages.

In this case, the plaintiff, Christopher Rasmussen, was a passenger in a stopped vehicle which suffered a rear end hit by defendant, Todd Blower’s, car. Liability was admitted.

Mr. Rasmussen suffered soft tissue injuries, which left him with neck and back pain, knee pain, left leg numbness and headaches. These injuries, along with a number of additional damages, including pain and suffering and loss of enjoyment of life in the future, were pleaded by the plaintiff. The defendant responded, pleading in part that, by the plaintiff’s failure to follow medical advice and recommended courses of treatment, the plaintiff failed to mitigate his damages. Particularly with respect to his consumption of alcohol while taking prescribed medications, the defendant submitted that the plaintiff’s non-pecuniary award should be reduced by 10-20% to account for his failure to follow medical advice, or to take steps to reduce or alleviate his own injuries, and/or the accompanying symptoms of pain he had reported. The Court ultimately agreed with the defendant, reducing the plaintiff’s non-pecuniary damages by 20%.

In his reasons, Mr. Justice Funt pointed to the duty of an injured party, to mitigate their damages, stating:

[38]         The law does not encourage indolence.  An injured party has a duty to mitigate:  see
Graham v.
Rogers, 2001 BCCA 432 (CanLII), 2001 BCCA 432, at para. 35.  In this type of case, the plaintiff must seek and follow the advice of his or her physician with the goal of overall improvement and recovery.

In rejecting the plaintiff’s submissions as to why medical advice was not followed, the Court went on to comment:

[40]        The Court rejects the plaintiff’s reasons for failure to mitigate.  Realistically speaking, perseverance is often the key to allowing medical treatments a chance to work.  During the approximately three months for which the plaintiff claims past wage loss, he could have attended physiotherapy and massage sessions.  The Court is satisfied that he had sufficient funds or, as noted by defence counsel, he could have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

Finally, the court reiterated the requirements to be met, for a defendant to prove that a plaintiff could have avoided their loss (either in whole or in part), affirming that the onus was met in this case, stating:

[41]        The defendant did not argue that, if the plaintiff had followed the medical advice he received, the plaintiff’s injuries would have resolved within “6 months to a year or so”:  Price, supra.  The defendant stated that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take into account the plaintiff’s failure to mitigate.  The defendant has satisfied the two-pronged test in Chiu v
. Chiu, 2002 BCCA 618 (CanLII), 2002 BCCA 618, set forth by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff's damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, 1985 CanLII 62 (SCC), [1985] 1 S.C.R. 146.

Ultimately, Mr. Justice Funt concluded:

[42]        The Court will reduce the non-pecuniary award it would otherwise have ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable treatments recommended to him.  He also consumed alcohol in quantity which, pragmatically viewed, probably reduced or nullified the effectiveness of the prescribed medications.

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Wednesday, September 10, 2014

Airline Incident Reports Not Subject to Litigation Privilege

In Smith v. Air Canada 2014 BCSC 1648, on appeal from an order of a Master of the Supreme Court of British Columbia, the defendant, Air Canada sought to overturn an order that the company disclose an incident report prepared by Air Canada personnel. The report was prepared following an incident during the boarding of a flight scheduled to depart from Vancouver to Toronto.

The plaintiff, Ms. Smith, suffered damages when a passenger failed to store a bag securely in the overhead compartment allowing it to fall on Ms. Smith. An incident report was prepared by an Air Canada employee, and the Court was to consider whether this document properly fell within the scope of documents subject to privilege.

The legal principles regarding the claim of privilege over documents are well-established, and were reiterated by the Court.

 6     In respect of the production of documents over which privilege is claimed the legal principles to be applied on such an application are succinctly reviewed by Master Bouck in Beer v. Nickerson, 2010 BCSC 718, paras. 17-18:
            [17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, [2007 BCSC 1392]. Those principles are as follows:

1.         The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.         The test for considering whether litigation privilege is established is two-fold:
(a)       Was litigation a reasonable prospect at the time the document in dispute was created?
(b)       If so, was the dominant purpose of the document's creation for use in litigation? (commonly known as the "dominant purpose" test.)

3.         Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.         However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

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.


6.         It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

            [18] To these principles I would add that the dominant purpose test is consistent with "the more contemporary trend favouring increased disclosure": Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

Applying these principles to the order under review, the Court found that Air Canada did not clear the first part of the established test. Despite affidavits asserting that the dominant purpose of the incident report was to provide information regarding the event to Air Canada’s legal department, this did not require consideration, as the Court found that litigation was not a reasonable prospect at the time the incident report was created, in the first place.

24     As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.

25     As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.

26     Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.

27     As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master's view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.

Air Canada further suggested that the Master had not properly considered that the company was particularly vulnerable to liability claims arising from incidents on board their aircrafts, and that this fact further demonstrates that incident reports are created in reasonable contemplation of litigation. The Court dismissed this assertion, pointing out that it is only at the time that a claim becomes a matter of litigation that the incident report is forwarded to Air Canada’s legal counsel.

30     I do not accept that the document is privileged because of the vulnerability of Air Canada to litigation claims from its passengers. Air Canada has a specific department to deal with claims, of which Mr. Gilchrist is the manager. Despite the presence of the claims department within the law department of Air Canada, it is clear that the claims department deals with claims until the matter becomes a matter of litigation. It is then that the incident report is forwarded to Air Canada's legal counsel. This too does not establish that the document was prepared in contemplation of litigation.

Given the Court’s finding that the incident report had not been created in reasonable contemplation of litigation, and thus that the Master’s view was not clearly wrong, the application for review of the Master’s decision was dismissed, and the document was to be produced to Ms. Smith and her counsel.

Richard Parsons and Nick Peterson of Collette Parsons Harris acted for the Plaintiff.

The trial Judge's full reasons can be viewed at the link provided above.

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Tuesday, September 9, 2014

Plaintiff Awarded Over $800,000 for Chronic Pain and Headaches Following Crash

In Forder v. Linde 2014 BCSC 1600, the plaintiff, Ms. Forder, suffered chronic pain and  headaches causing a major depressive disorder, following a rear end motor vehicle accident. The plaintiff was awarded over $800,000 as follows:

General Damages:                        $100,000

Past Lost Earning Capacity:          $145,577

Future Loss of Earning Capacity:  $325,000

Future Cost of Care:                      $230,000

Special Damages:                         $35,023.76

TOTAL:                                          $835,600.76

At the time of the incident, the plaintiff was a 47 year-old special education assistant, who also regularly carried out respite care for families with special needs children.

The motor vehicle accident left the plaintiff suffering chronic pain and headaches and effectively ended her work as a special education assistant. The award reflects the Court’s view that based on expert evidence demonstrating the potential for rehabilitative success following a multidisciplinary pain program, it is not unreasonable to expect that Ms. Forder may acquire more respite care clients in the long term.

795     Mr. Struthers extrapolation of future earnings for Ms. Forder if she never worked again was $447,336, and if I make an allowance for lost respite care (on my basis of $5,000 per year) that is an approximate amount of $57,360 per year or lost future earnings of $502,036.

796     However, Dr.'s Wild, Anderson, Underwood and O'Shaughnessy all spoke favourably of utilizing a multidisciplinary pain clinic to assist Ms. Forder resolving her anxiety and depression over her chronic pain and headaches.

    Ms. Forder was basically bed ridden for some 18 months. Equally, clearly as one sifts through the reports and sees the improvement after 18 months and the plain need for Ms. Forder to become more active but at the same time have appropriate medical care without the worry of a lawsuit impinging on her life, there is in my view a reasonable medical likelihood of Ms. Forder being capable of sedentary employment. She has continued with one of her respite care clients. It is not unreasonable to forecast that Ms. Forder, with her skills and empathy for special needs children will be able in the long term to acquire some more clients.
This potential was also reflected in the award for future cost of care, to account for costs related to multidisciplinary pain care and management.

805     I had some difficulty with the defendant's position when they were in agreement that there was a need for a multidisciplinary pain clinic, ongoing home assistance, but only for some two years, payment for Botox treatment even perhaps to age 75 ($53,000), the need for cognitive behavioural treatment, and not the ten sessions that were purportedly done with Dr. M. Anderson, but with 30 sessions recommended by Dr. S. Anderson ($5,250).

     And given the need for medication and psychological intervention for the major depressive disorder based on Dr. O'Shaughnessy and Dr. Wild's opinion, the defendant's suggestion of future cost of care be limited to $35,000 - $45,000 does not fall within their own parameters.

808     In my view, the pain clinic, the medications (reduced as plaintiff's counsel suggested for the Gabapentin to $5,540); psychological assessment; CBT; ongoing psychological assistance; occupational therapy; physiotherapy; water therapy; allowance for homemaking and pool/gym membership; Nordic poles; yoga, kinesiology; home aids; and vocational assessment are all appropriate.

809     In the long term, some of these modalities may prove useful, some may not, and I conclude that $230,000 is an appropriate award.

Richard Parsons and Nick Peterson of Collette Parsons Harris acted for the Plaintiff. 

The trial Judge's full reasons can be viewed at the link provided above.

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Friday, October 7, 2011

Doctor Who Bills ICBC Over $1 Million Per Year Found to Lack Objectivity

In a recent case, Drodge v. Koza, 2011 BCSC 1316, Madam Justice Dardi of the BC Supreme Court held that the opinion of one of ICBC's most widely used psychiatrists should be given no weight, because Judge Dardi commented, Dr. Solomon was not an impartial expert:

[53]         In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

According to ICBC's financial records Dr. Solomons billed ICBC $1,008,997 in 2009 for medical reports he provided to ICBC.  Given his financial relationship with ICBC Judge Dardi's finding that Dr. Solomon is not an impartial expert is not suprising. 

The full text of Judge Dardi's comments about Dr. Solomon are as follows:

Dr. Solomons

[49]         Dr. Solomons is a qualified psychiatrist who at the request of ICBC examined Mr. Drodge on July 9, 2009, and prepared a report dated August 2, 2009. At trial I ordered that certain contents of his report be expurgated, on the basis that the statements were not properly admissible opinion evidence.
[50]         Dr. Solomons opined that Mr. Drodge did not sustain any functional brain injury as a result of the accident; nor did he develop any psychiatric condition or disorder as a result of the accident. It is Dr. Solomans’ view that the pre-conditions for the diagnosis of post-traumatic stress disorder were not met in this case. Rather, in his opinion Mr. Drodge presented with non-specific stress symptoms that potentially related to a number of causes, including physical pain, unemployment, financial constraints, and boredom. Other than some stress associated with his financial difficulties, he opined that Mr. Drodge’s present psychological status is “essentially normal”. Insofar as a prognosis, Dr. Solomans opined that there are no cognitive or psychiatric concerns, and that Mr. Drodge has no psychiatric or neuro-cognitive impediments for any vocational activities.
[51]         In cross-examination Dr. Solomans admitted that a person could suffer from cognitive symptoms as a consequence of severe headaches. He agreed that headaches of this nature could affect someone’s mood and their ability to work, and that the headaches could therefore be disabling.
[52]         Although Dr. Solomons maintained that Mr. Drodge did not exhibit any cognitive difficulties during his interview, the evidence supports a finding to the contrary. In cross-examination he acknowledged that his notes from the interview indicate as follows:
Not had cognitive tests. Then he says did. Query name. Not remember when. About 18 months to two years ago. Not remember the feedback about the test results.
Not recall anything about it at all, not even why he was treated.
Moreover, Mr. Drodge had mistakenly told him he had sustained his back injury in 1986; his back injury occurred in 1996.

[53]         In my view, Dr. Solomons was not an impartial expert providing a balanced discussion on Mr. Drodge’s condition. Overall, I found his evidence lacking the sufficient degree of objectivity to be of any real assistance. In the result I have accorded his opinion little weight.

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Wednesday, July 6, 2011

Plaintiff Awarded $2.4 Million For Chronic Low Back Condition Caused by a Car Crash

In Bouchard v. Brown Bros. Motor Lease, 2011 BCSC 762, the Plaintiff, Maurice Bouchard, suffered a low back injury and chronic pain syndrome due to a motor vehicle accident and he was awarded over $2.4 Million dollars as follows:

Pain and Suffering            $160,000
Past Income Loss            $264,000
Future Earning Capacity   $1,500,000
Cost of Future Care         $475,000
Out of Pocket Expenses   $36,235.51

Total                                $2,435,235.51

The award was reduced by 40% to account for the chance that the Plaintiff's degenerative spine condition would have degenerated on its own regardless of the accident occurring.

The Plaintiff was 31 years old the time of trial and was limited to working in only part time sedentary jobs due to his injuries.  The trial Judge's full reasons can be viewed at the link provided above.

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Tuesday, May 31, 2011

Hit and Run Accident Victim Entitled to Damages from ICBC - Despite ICBC's Credibility Attacks

In prior posts we have discussed the legislative framework in British Columbia as it relates to hit and run accidents.  In short, victims of hit and run drivers in BC can claim against ICBC in place of an unidentified hit and run driver.  However, the law in BC states that anyone wishing to make such a claim must take all reasonable steps to attempt to identify the hit and run driver or their claim may fail.  ICBC defends hit and run cases vigorously.  If you have been involved in a hit and run accident you should contact a lawyer to assist you as soon after the accident as you possibly can, and before you speak to ICBC.

In the recent case Burton v. ICBC, 2001 BCSC 653, ICBC challenged the Plaintiff's right to claim against ICBC in the place of a hit and run driver.  In the case the hit and run driver had been very aggressive toward the Plaintiff at the scene of the accident and she was afraid to get out of her car before the other driver fled the scene.  ICBC claimed that the Plaintiff was not a credible witness and that she had waived her right to recover against ICBC when she failed to get out of her car and confront the other driver.  Mr. Justice Macaulay did not accept ICBC's position and found the Plaintiff was a credible witness and had complied with her obligations under the Act.  Mr. Justice Macaulay stated as follows in his reasons dated May 19, 2011:

[1]             The plaintiff, Connie Burton, sues the defendant, Insurance Corporation of British Columbia (“ICBC”), pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”), as a nominal defendant, arising out of an alleged hit and run accident that occurred in Duncan, B.C., on December 1, 2008. Mrs. Burton had stopped at a stop sign waiting to turn right and join southbound traffic on the Trans Canada Highway (“TCH”) when an unidentified vehicle hit the Burton vehicle from behind and, shortly after, left the scene.

[2]             At issue under s. 24(1) of the Act is whether Mrs. Burton made “all reasonable efforts to ascertain the identity of the unknown owner and driver” and that the identity of such persons is “not ascertainable”. Also at issue, if Mrs. Burton satisfies the test in s. 24(1), is quantum of damages.

[3]             The only two witnesses at trial were Mrs. Burton and her husband who had been a little ahead of Mrs. Burton in a separate vehicle. Mr. Burton became aware of the collision almost immediately after it occurred and returned to the area in time to make some observations of the unidentified vehicle.

[4]             ICBC challenges the credibility and reliability of Mrs. Burton. Much of the challenge is based on:  alleged inconsistencies between her evidence on examination for discovery and at trial; her alleged failure to disclose relevant information about the behaviour of the driver of the unidentified vehicle to the police or ICBC; and finally, the content of her statement to her then family doctor after she sought medical treatment for her injured shoulder following an incident at work. In spite of, and having considered, the challenges, I find Mrs. Burton to be credible. Her husband also corroborated important parts of her evidence.

[5]             Mr. and Mrs. Burton, along with their then eight year old son, were moving to Lake Cowichan on the day of the accident. Late in the day, Mr. Burton and his son, followed by Mrs. Burton who was alone in her own vehicle, returned a rental van to a commercial site just off the TCH immediately south of Duncan.

[6]             Before the drop-off of the van, both vehicles travelled east on Cowichan Way to a stop sign at the TCH. Based on Mr. Burton’s estimate, the stop sign was about 200 yards before the commercial premises. After turning right on to the TCH, there are two lanes for southbound traffic that cross a bridge at about halfway to Boyes Road where one turns right to go to the commercial premises.

[7]             Mrs. Burton was following some distance behind her husband’s vehicle as she approached the stop sign at about 6:00 p.m. It was dark out and raining. There was no street lighting in the immediate area, although there would have been some ambient light from the highway and businesses in the area including from the other side of the TCH which is four lanes in width.

[8]             The closest business was a restaurant located to Mrs. Burton’s left when she stopped. Only the rear of the building faced towards Cowichan Way. There were no windows on that side and occupants of the restaurant would not have had any direct view of the accident scene. At most, someone at the front of the restaurant would have been able to see the stop sign but not anything beyond the front of a car stopped at the site.

[9]             To Mrs. Burton’s right was an undeveloped treed area running alongside the Cowichan River and separating the river from Cowichan Way. There were no buildings between Cowichan Way and the river.

[10]         According to Mrs. Burton, she had not noticed any vehicle in her rear view mirror as she came to a stop and signaled a right turn. She recalls a big jolt and going forward into the steering wheel. There was some damage to the rear bumper of the Burton vehicle. According to both Mr. and Mrs. Burton, the rear trunk did not close properly afterwards and the driver’s seat bolts were sheared off. There is no independent corroboration of the latter areas of damage although ICBC had an opportunity to inspect the vehicle.

[11]         Mrs. Burton immediately speed dialed her husband on her cell phone and told him that she had been in an accident. While she was talking to her husband, the driver behind her got out of his vehicle and immediately began banging on the windows of the Burton vehicle as he approached the driver’s side door. The individual began opening her door and was yelling and swearing at her throughout. According to Mrs. Burton, he yelled: “Move the car off the road, let’s get this over and done with bitch.”

[12]         Again, according to Mrs. Burton, her husband told her to hang up and call 911. Mrs. Burton did so and immediately spoke to a dispatcher. She then told the driver that her husband was on the way and that she was speaking to the police.

[13]         The driver slammed Mrs. Burton’s door, returned to his vehicle, backed away and then passed by on her right side, turned south on the TCH and disappeared from her view. By about that point, Mrs. Burton observed her husband and son running towards her on the bridge. Only one other vehicle had approached from her rear and passed by while she was engaged with the driver.

[14]         Mr. Burton testified that, after speaking to his wife, he and his son ran along the side of the TCH and across the bridge towards her. At about the halfway point, he saw a white Reliant K car backing off his wife’s car. The driver then proceeded around the right side of the Burton vehicle and turned onto the TCH towards Mr. Burton. Mr. Burton attempted to take a cell phone picture of the license plate of the vehicle but was unsuccessful as another vehicle was in the way. After the driver passed Mr. Burton southbound, he turned right at Boyes Road and then disappeared from sight. As Mr. Burton approached his wife’s vehicle, he observed that the front half of her vehicle was in the southbound slow lane. There was no significant attempt to challenge this evidence on cross-examination.

[15]         Mrs. Burton described herself as crying and frightened by the sequence of events. She was afraid that the driver was going to pull her out of her car. She barely looked at him and did not ask him to produce any vehicle or personal identification. Mr. Burton testified that she appeared “freaked out”, afraid, motionless and crying when he arrived at her side. 

[16]         Mrs. Burton did not record the license plate number of the vehicle that collided with hers. She could not see the front license plate because of the point of impact. Nor did she observe the rear license plate that was likely at least momentarily visible as the vehicle passed on her right and turned onto the TCH.

[17]         In cross-examination, counsel for ICBC confronted Mrs. Burton with her denial on examination for discovery that the other driver opened her car door. According to her, she forgot. It is apparent that she gave a statement to ICBC the day after the accident stating that the driver opened her door and told her to get her car off the road. In addition, Mr. Burton also testified that, while he was speaking to his wife on the phone just before he told her to hang up and call the police, he overheard a voice in the background saying words like: “Let’s get this done bitch. Get out of the car bitch. Let’s get this done.” Mr. Burton also overheard the banging noises that preceded the conversation.

[18]         I am satisfied that Mrs. Burton’s account of the events immediately surrounding the accident is truthful and, in particular, that her description of the conduct of the driver and its effect on her are reliable.

[19]         I accept that Mrs. Burton was extremely frightened as a result of the conduct of the driver and that she did not want to do anything that might place herself further at risk. Added to the initial shock of being rear-ended and feeling injured, I am not surprised that Mrs. Burton did not attempt to obtain direct information from the driver respecting his identity or that she failed to make observations of his license plate as he left the scene. 

[20]         Before the accident, Mrs. Burton was healthy except for a chronic kidney condition. She was aware of pain immediately after the impact in her left shoulder and down her back on the right side. Although police and ambulance personnel attended and spoke to Mrs. Burton, she elected to have her husband drive her to the hospital. X-rays taken at the hospital confirmed that there were no bone fractures.


[21]         According to Mr. and Mrs. Burton, they informed the police of the events and were advised that the police would look for the driver. It is unlikely that the police tried to find the vehicle because there is a notation in the police file to the effect that the officer concluded the investigation after filling out an accident report.

[22]         During the weeks following the accident, the Burtons and many of their friends looked throughout the Duncan area for a vehicle with front-end damage of the type and description provided by Mr. Burton. One of the friends is a Tow Truck operator. He reported observing a similar car parked on Gibbons Road. Mr. Burton went to look at the vehicle. It was parked on private property with the front end, and any possible damage, hidden from view because it was parked in a snow bank. The vehicle was the same make and matched the general description but did not have a rear license plate.

[23]         Mrs. Burton telephoned the police and told the receptionist about the vehicle. Mrs. Burton was informed that the information would be passed on to the investigating officer although she never heard anything further from the police. On a later occasion, Mrs. Burton observed another vehicle matching the general description parked in a local parking lot. She did not approach or report that vehicle to anyone other than her husband because the driver was a woman rather than a man.


[24]         Counsel for Mrs. Burton submits that her lack of action to identify the vehicle or driver at the scene was reasonable having regard to the threatening and intimidating circumstances. Further, he contends that there was nothing to be gained by taking additional steps after the accident such as posting notices at the site or the restaurant, and advertising for witnesses to come forward in a local paper.

[25]         Counsel for ICBC contends first that I should not believe Mrs. Burton but I have rejected that contention. He also contends that Mrs. Burton reasonably ought to have taken steps at the scene to identify the driver and the vehicle. He says that her failure to do so was a matter of choice rather than distraction brought on by fear. Finally, he submits that the later actions to locate and identify the vehicle were also insufficient.


[26]         Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:
In my view the overall purpose of the section is to limit the exposure of [ICBC] to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be in their own interests, and which, by virtue of the section, become the interests of the corporation.I observe that the predecessor section referred to the names of the owner and driver not being ascertainable but did not expressly include the qualification now found in s. 24(1)(a) that the efforts to ascertain identity be reasonable.
[27]         Also significant is the decision of the Court of Appeal in Smoluk v. Insurance Corporation of British Columbia (1993), 83 B.C.L.R. (2d) 328 (B.C.C.A.). The court limited Leggett on the basis that the plaintiff in that case had decided not to pursue his rights. Smoluk, on the other hand, was prevented from obtaining information because the other driver fled the scene before she could do more than attempt to record the license plate number. Unfortunately, in her haste, she got the number wrong. The court also concluded that, once the error in the number was apparent, other steps such as advertising immediately after the event or setting up surveillance at the scene of the accident to look for the driver would have been highly speculative investigative steps and the plaintiff was not required to take them.

[28]         In McMahon v. Insurance Corp. of British Columbia (1998), 14 C.C.L.I. (3d) 7 (B.C.S.C.) at para. 28, Quijano J. accepted earlier authority that a reading of the above two decisions suggests that “‘all reasonable steps’ must be assessed in the context of each individual case.” In a recent decision, Goncalves v. John Doe, 2010 BCSC 1241, Harris J. reviewed several authorities interpreting “reasonable efforts.” I distill the following additional descriptors from the cases that he reviews, at paras. 8‑11 inclusive:
·                 Does not mean all possible efforts;
·                 Means logical, sensible and fair rather than absurd, whimsical or unwarranted;
·                 Not required to take action that is highly unlikely to produce any result; and,
·                 Includes a subjective aspect having regard to the plaintiff’s physical and mental condition at the time of and in the circumstances of the collision.
I do not need to refer expressly to many of the other cases referred to by counsel. With one exception, they represent applications of one or more of the propositions set out above in the facts of the particular case.

[29]         The exception to which I refer above is Breton v. Insurance Corp. of British Columbia (1990), 47 C.C.L.I. 221 (B.C.S.C.), a decision that predates Leggett. As I understand the latter, the Court of Appeal rejected the more narrow interpretation of the predecessor section found in Breton: Leggett at para. 6.

[30]         In addition to the facts already set out in my reasons, I accept that there was no pedestrian traffic in the immediate area at the time of the collision and, further, that many of the vehicles travelling in either direction on the TCH would be travelling through Duncan and unlikely to be within reach of advertising. Further, I consider it unlikely that the drivers passing closest to the accident site would even be aware that a collision had occurred on Cowichan Way, given the adverse weather and lighting conditions along with their limited vantage point as they passed by. As I have already set out, only one driver came along Cowichan Way after the collision before the driver responsible for the collision disappeared but that driver never stopped to offer assistance.

[31]         I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32]         I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33]         Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34]         I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

posted by Collette Parsons at 0 Comments

Wednesday, May 18, 2011

ICBC's Appeal of Indivisible Injury Case Dismissed by Supreme Court of Canada

Recently the Supreme Court of Canada denied leave to hear ICBC's appeal of the BC Court of Appeal's decision in Bradley v. Groves.   The BC Court of Appeal's decision in Bradley v. Groves, 2010 BCCA 361, is an important decision because it deals with the distinction between divisible and indivisible injuries.  At law if multiple parties contribute to one indivisible injury they are all 100% responsible for the indivisible injury regardless of the fact that each party only contributed to causing the injury to some degree.  Whereas, in divisible injury cases, as one would expect, if multiple parties contribute only to specific discrete injuries each party is only responsible for the harm they cause.  These principles are thoroughly discussed in the seminal case on this issue, Athey v. Leonati, [1996] 3 S.C.R. 458.   

In Bradley v. Groves, 2010 BCCA 361, ICBC took the position that aggravation of a pre-existing injury is not an indivisible injury. ICBC contended that the trial judge must identify and "disentangle" any earlier tortiously caused injury from later harm and assess damages for each injury separately.  Flowing from ICBC's position, if correct, would be a finding that each defendant would only be liable for part of an invisible injury. 
Fortunately for Plaintiffs the Supreme Court of Canada refused leave to appeal and ostensibly upheld the reasons of the BC Court of Appeal.  On these issues the BC Court of Appeal stated as follows in Bradley v. Groves beginning at paragraph 32:

[32]        There can be no question that Athey requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]        The approach to apportionment in Long v. Thiessen is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility: Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]        That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[35]        This is not a case of this Court overturning itself, because aspects of Long v. Thiessen were necessarily overruled by the Supreme Court of Canada’s decisions in Athey, E.D.G., and Blackwater.  Other courts have also come to this same conclusion: see Misko v. Doe, 2007 ONCA 660, 286 D.L.R. (4th) 304 at para. 17.

[36]        It may be that this represents an extension of pecuniary liability for consecutive or concurrent tortfeasors who contribute to an indivisible injury.  We do not think it can be said that the Supreme Court of Canada was unmindful of that consequence.  Moreover, apportionment legislation can potentially remedy injustice to defendants by letting them claim contribution and indemnity as against one another.

[37]        We are also unable to accept the appellant’s submission that “aggravation” and “indivisibility” are qualitatively different, and require different legal approaches.  If a trial judge finds on the facts of a particular case that subsequent tortious action has merged with prior tortious action to create an injury that is not attributable to one particular tortfeasor, then a finding of indivisibility is inevitable.  That one tort made worse what another tort created does not automatically implicate a thin or crumbling skull approach (as in Blackwater), if the injuries cannot be distinguished from one another on the facts.  Those doctrines deal with finding the plaintiff’s original position, not with apportioning liability.  The first accident remains a cause of the entire indivisible injury suffered by the plaintiff under the “but for” approach to causation endorsed by the Supreme Court of Canada in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333.  As noted by McLachlin C.J.C. in that case, showing that there are multiple causes for an injury will not excuse any particular tortfeasor found to have caused an injury on a “but-for” test, as “there is more than one potential cause in virtually all litigated cases of negligence” (at para. 19).  It may be that in some cases, earlier injury and later injury to the same region of the body are divisible.  While it will lie for the trial judge to decide in the circumstances of each case, it is difficult to see how the worsening of a single injury could be divided up.  

Application to the Present Appeal

[38]        Without a finding of divisibility, the appellant’s arguments cannot succeed. The trial judge found as a fact that the plaintiff’s injuries from the first accident and the second accident were indivisible. The defendant and the other motorist both caused and contributed to the plaintiff’s soft tissue injuries. He also found those injuries were not separable. There is no basis on which to interfere with these findings of fact. Flowing from them is the conclusion of joint and several liability.

[39]        We find no error in principle in the reasons of the trial judge, and therefore dismiss the appeal from this part of his order.

posted by Collette Parsons at 1 Comments