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As reported last week by the Vancouver Sun, ICBC’s top brass have handed out directives to all adjusters to withdraw settlement offers on existing claims and re-assess claims not by the law but by an internal meat chart.

Details of this secret memo are slowly coming to light and it appears ICBC has created 5 different categories for non-pecuniary damage assessment.  The first three deal with soft tissue injuries, the fourth with more serious injuries and the last with what ICBC deems to be catastrophic injuries.

I have not yet had the privilege of seeing ICBC’s full memo to their adjusters (who have been instructed to keep the details secret) but sources tell me that ICBC will be valuing pain and suffering by completely artificial criteria which run contrary to well established law.  If and when full details of ICBC’s new policy are shared with me I will gladly publish them.

In the meantime, if you are being told that your claim is worth an artificially small amount based on ICBC’s internal assessment please know your rights.  It is well established that non-pecuniary damages are assessed individually on a case by case basis using the following non-exhaustive list of factors.  If ICBC is not prepared to use these you can be confident BC courts will –

a)     age of the plaintiff;

b)     nature of the injury;

c)     severity and duration of pain;

d)     disability;

e)     emotional suffering; and

f)       loss or impairment of life;

g)     impairment of family, marital and social relationships;

h)     impairment of physical and mental abilities;

i)       loss of lifestyle; and

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

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Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, canvassing what steps are adequate for a hit and run collision victim to take in ascertaining the identify of the offending motorist before they can successfully make a claim under s. 24 of the Insurance (Vehicle) Act.

In today’s case (Ghuman v. ICBC) the Plaintiff was struck by a vehicle that fled the scene shortly after impact.  The Plaintiff’s wife was in a separate vehicle nearby but did not notice the collision.  The Plaintiff drove away from the scene and did not find any other witnesses.  The Plaintiff sued ICBC as nominal Defendant in the place of the at fault motorist under s. 24 of the Insurance (Vehicle) Act.

ICBC argued the plaintiff should not be compensated for his injuries as he failed to take all reasonable efforts in identifying the offending motorist.  Madam Justice Donegan rejected this argument finding a standard of perfection is not required under the legislation and that the plaintiff acted reasonably in the circumstances.  In addressing the required standard for victims of hit and run collisions the Court noted as follows:

[62]         Overall, I find the plaintiff acted reasonably at the time of the Collision and its immediate aftermath, but was unable to obtain the required information. The driver of the SUV immediately fled the scene. The lead vehicle left quickly as well. There were no other potential witnesses in the area of the Collision, other than perhaps Mr. Ghuman’s wife, but she was unaware the Collision even occurred. In these circumstances, I think a reasonable person would believe this low-impact accident was not so obvious that others in the area would have even seen it, let alone observed details of the offending vehicle in the seconds before it fled the area.

[63]         However, as the case authorities make clear, the requirement to make all reasonable efforts to ascertain the identity of the other driver and owner is not limited to the immediate aftermath of the Collision. Mr. Ghuman must be found to have also made all reasonable efforts to ascertain the identity of the unknown driver and owner in the days and weeks that followed.

[64]         In those days and weeks, Mr. Ghuman took several steps to try and ascertain the identity of the SUV, its driver or owner.

[65]         He called police the following day and gave them all of the information he had. He also reported the Collision to ICBC the following day and followed up with the written claim form a few days later.

[66]         Within a week of the Collision, Mr. Ghuman posted flyers seeking witnesses around the intersection where the Collision occurred. He retained counsel shortly thereafter to protect his interests and within about a month of the Collision, his counsel arranged for more signs seeking witnesses to be posted around the intersection and for an advertisement seeking witnesses to run for a week in the local newspaper.

[67]         None of the above efforts generated any witnesses to the Collision or any information that might have led to the identity of the SUV, its driver and owner.

[68]         ICBC identifies two steps that Mr. Ghuman did not take in the days and weeks following the Collision as a basis for finding that Mr. Ghuman did not make all reasonable efforts. It points to Mr. Ghuman’s failure to follow up with police and his failure to canvass business in the Strawberry Hill complex for potential video recordings or records of witnesses who may have come forward to those businesses.

[69]         I agree with the observations of Justice DeWitt-Van Oosten in Rieveley that there are often other steps that a plaintiff could have taken in particular circumstances, but that s. 24(5) of the Act does not demand that a plaintiff make every conceivable effort to show it was not possible to ascertain the identity of the unknown driver or owner. Rather, what is required is that a “plaintiff act reasonably in light of surrounding circumstances, including the information known to him or her at the material time”: Rieveley at paras. 36-37.

[70]         Mr. Ghuman did not follow up with police following his initial call because he reasonably believed police would not investigate the Collision and/or that any investigation would be fruitless. Mr. Ghuman reported the Collision to police because he understood that the law obliged him to, but given the circumstances of the Collision and the presence of only very generic information about the SUV, Mr. Ghuman’s belief that police would not investigate or such an investigation would be fruitless is reasonable. I accept there was little benefit in following up with the Surrey RCMP in these circumstances. To do so would be highly unlikely to produce any results.

[71]         Mr. Ghuman did not check with businesses near the area for video surveillance and/or records of witnesses who may have come forward because he relied on another person, his wife, who told him that she was making some of those efforts. Not admissible for the truth that those steps were actually taken, Mr. Ghuman’s belief that some of those steps were being done does provide a reasonable explanation why he did not undertake them himself.

[72]         I wish to make it very clear that there is no admissible evidence before me that those efforts (canvassing for video surveillance and/or seeking records of potential witnesses that may have come forward to nearby businesses) were made. However, in the circumstances of this case, I would not consider such extensive efforts necessary in order for this plaintiff to comply with s. 24(5). Given the distances of the surrounding businesses from the Collision site and the layout of the area, I accept there would have been little benefit in contacting businesses for video surveillance and/or records of people who may have come forward to those businesses. Such efforts would be highly unlikely to produce any results.

[73]         In the end, Mr. Ghuman is not to be held to the standard of perfection. Even if the timing of his telephone call to police and his lack of follow up with police could be viewed as something less than reasonable in and of themselves, I agree with the plaintiff that what is reasonable in all of the circumstances of one case does not rise and fall on a single effort. What sets this case apart from other cases provided is that Mr. Ghuman was faced with a driver who immediately fled the scene of a low impact type of accident in an area with transient traffic, surrounded by parking lots. Despite these obvious limitations in obtaining information regarding that vehicle’s identity, Mr. Ghuman nevertheless chose to take several positive steps to investigate. He was proactive from the outset. That he was unsuccessful is of no consequence. All that is required is that he take all reasonable steps to ascertain the identity of the unknown driver and owner of the SUV. I find that he did in the circumstances of this case.

[74]         For all of these reasons, I find the plaintiff has met the onus upon him to establish that he made all reasonable efforts to ascertain the identity of the SUV’s owner and driver under s. 24(5) of the Act and that the identity of the unknown owner and driver of the SUV is not ascertainable. Accordingly, ICBC is appropriately named as the nominal defendant to this action and liability is found against ICBC.

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In British Columbia expert witnesses in litigation are granted a broad immunity in cases where they are alleged to be negligent or otherwise provide less than adequate services when testifying.  Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, applying this principle in dismissing a lawsuit against an expert witness.

In today’s case (Owimar v. Warnett) the Plaintiff was involved in several collisions and sued for damages.  In the course of the lawsuits the Defendants retained a physician who “examined the plaintiff three times, provided five medical reports from 2003 to 2013 and testified in court“.

The Plaintiff sued the Doctor and the defence counsel that retained him alleging “various kinds of fraud and negligence in their respective capacities as defence counsel and expert witness and claims that they substituted his lumbar spine x-ray taken in November 1996 with an x-ray that would disprove his claims of being injured in the MVAs.“.

The lawsuits were dismissed for various grounds.  One of the reasons dismissing the claim against the expert witness was the principle of witness immunity.  In triggering and applying this doctrine Madam Justice Murray provided the following comments:

[34]         With regard to Dr. McGraw I am satisfied that the doctrine of witness immunity applies. Under that doctrine witnesses are immune from civil liability. In addition as for expert witnesses the doctrine applies to anything they say in court as well as pre-trial activities including assessments and reports: P.(J.) v. Eirikson, 2015 BCSC 847 at paras. 21 and 25.

[35]         Our Court of Appeal recently confirmed that a professional witness who gives evidence in court is protected from civil action in 311165 BC Ltd v. Canada (A.G.), 2017 BCCA 196:

[50] It must be kept in mind that the immunities from suit that prevent claims based on evidence given in court and on bringing litigation are broad in order to protect the justice system. Witnesses should not be dissuaded from giving evidence or fettered in what they tell a court by the fear that an aggrieved person will sue them. Prosecutorial decisions must be allowed to be made in an atmosphere that is free from the chilling effects of potential civil liability. Access to the courts must not be impeded by leaving litigants in fear of being open to lawsuits brought in retaliation.

[36]         As a result of the witness immunity defence I am satisfied that the plaintiff’s allegations against Dr. McGraw will fail. Accordingly there is no genuine issue to be tried and the claim must be dismissed under Rule 9-6(5)(a).

[37]         In conclusion, having considered all of the evidence and all of the submissions I am satisfied that the action against the defendants must be dismissed as it offends Rule 9-5(1). In the alternative I am satisfied for the reasons above that the action against the defendants must be dismissed under Rule 9-6.

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Reasons for judgement were published this week by the BC Court of Appeal dismissing an unidentified motorist injury claim on the basis that the collision occurred on a sandbar which is not a ‘highway’ which is a condition to such a claim succeeding.

In today’s case (Adam v. ICBC) the Plaintiff suffered injuries when struck by an unidentified motorist while on a sandbar that people used to camp and fish from along the Fraser River.  The Plaintiff sued ICBC under s. 24 of the Insurance (Vehicle) Act.  At trial the Plaintiff was successful but ICBC appealed arguing that a s. 24 claim could not succeed in these circumstances as a sandbar is not a highway and a crash has to occur on a highway for s. 24 to be triggered.  The BC Court of Appeal agreed and provided the following reasons:

[91]         In summary, none of the means of becoming a highway as required by paragraphs (a) to (g) of the Transportation Act definition apply to the sandbar. Nor is the sandbar a “highway” within the meaning of paragraph (b) or (c) of the Motor Vehicle Act definition. I therefore conclude the judge erred in finding the sandbar is a “highway” within the meaning of s. 24 of the IVA.

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, considering a request to withdraw a formal admission of fault for a vehicle collision in the deep stages of litigation.

In today’s case (Bodnar v. Sobolik) the Plaintiff was involved in a 2014 collision.  He sued alleging the Defendants were at fault.  ICBC, the Defendant’s insurer, admitted fault in the course of the lawsuit.  As the trial progressed the Defendants retained an engineer who viewed video of the crash and concluded “the speed of the plaintiff vehicle as 74 km/hr in a 50 zone“.  Based on this the Defendants sought to withdraw the admission of fault.  In refusing the request the Court noted the litigation was mature and it would not be in the interests of justice to allow it.  In dismissing the application Mr. Justice McEwan provided the following reasons:

[13]         The Notice of Civil Claim was filed October 11, 2016. The Response to Civil Claim was filed January 12, 2017, formally admitting liability. On May 30, 2017, Mr. Bo Baharloo assumed conduct of the file.

[14]         ICBC clearly understood the material contained on the video footage. The admission was not made hastily, inadvertently and without knowledge of the facts. Successive adjusters worked on the file and gave instructions to admit liability with full knowledge of the video footage. At the time liability was admitted ICBC had the video footage. The defendants had been aware of the existence of video footage when they were provided with a copy. The preparation of a report on September 28, 2018 was well after ICBC and defence counsel had both received a copy of the video footage.

[15]         At this late stage both cars have been written off and are no longer available for inspection.

[16]         It is not in the interests of justice to allow a withdrawal of the admission of liability because there is now a difference of opinion about the cause of the accident.

[17]         The application is dismissed. In saying that I say nothing about contributory negligence or whether it is possible to plead or amend the pleadings to raise the issue.

[18]         I should say that I have considered the cases Boyd v. Brais, 2000 BCSC 404 and Miller v. Norris, 2013 BCSC 552 as nearest to the present situation.

[19]         The application is dismissed with costs to the plaintiff.

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Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, awarding damages, including a $12,000 future care award for the cost of medical cannabis, to a collision victim.

In today’s case (Carrillo v. Deschutter) the Plaintiff was involved in a 2011 collison.  The Defendant admitted fault for the crash.  The Plaintiff suffered a variety of injuries including a frozen shoulder, soft tissue injuries and went on to develop chronic pain with a poor prognosis for full recovery.

At trial, in addition to other heads of damages, the Plaintiff sought damages for the future cost of medical cannabis.  The Defendant objected to this arguing that “conventional prescription drugs” should be adequate.  The court was not persuaded by this defence and awarded $12,000 for the cost of medical cannabis.  In reaching this conclusion Madam Justice Dardi provided the following reasons:

[158]     I have reviewed all the authorities on medical cannabis relied on by both parties. The authorities establish that, in some cases, medical cannabis is compensable in a personal injury case: Wright v. Mistry, 2017 BCSC 239 at para. 84; Amini v. Mondragon, 2014 BCSC 1590 at paras. 133-136; Chavez-Salinas v. Tower, 2017 BCSC 2068 at para. 539.

[159]     An important fact in this case, and one that distinguished this case from many of the cases relied on by the defence, is that Mr. Carrillo, after receiving Dr. Hershler’s recommendations, has been using cannabis balm, tincture oil and capsules. I accept his evidence, that he has found the cannabis products effective and, as a result of using the cannabis products, he has experienced some pain relief. There was no evidence that the consumption has produced any negative side effects. Notably, since the Accident, Mr. Carrillo has pursued the more traditional modalities of physiotherapy, chiropractic treatments, massage and injections without any significant benefit. Mr. Carrillo’s prescription pain medication provides him with some symptomatic relief but I do not accept that it controls his pain as is asserted by the defendant.

[160]     With respect to the defence submissions on Mr. Carrillo’s mental health issues, I note that Mr. Carrillo’s medical condition is currently being monitored by his primary care provider, Dr. Sennewald. The six-month’s use of cocaine for pain was some six years ago and there is no evidence of any issue arising since that time.

[161]     All things considered, I conclude that the medical cannabis program recommended by Dr. Hershler is medically justified within the meaning contemplated by the authorities and that it is reasonable to make an award for the costs of the cannabis as part of Mr. Carrillo’s future pain management plan.

[162]     The evidence on the costs of the medical cannabis was thin but not so thin as to justify not making any award for Mr. Carrillo. There was no evidence as to what the cost would be through a Health Canada supplier. Those costs may be different from the costs Mr. Carrillo actually incurred purchasing them through other dispensaries. This is a significant shortcoming that I have taken into account in my assessment. I have also factored into my assessment that in his report Dr. Hershler did not say how long Mr. Carrillo should be on the medical cannabis program. It is uncertain how long he may continue using medical cannabis.

[163]     In the result, and on the totality of the evidence and taking into account the relevant contingencies, I assess an award for medical cannabis in the amount of $12,000.

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