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$55,000 Awarded for Shoulder Pain Ongoing Four Years Post-Accident
Wednesday, 2 May 2012
In the recently reported case of Lim v. Anderson, 2012 BCSC 263, Madam Justice Fenton awarded $55,000 in non-pecuniary damages (pain & suffering) following a five day trial to a plaintiff injured in a motor vehicle accident in February 2008. The facts of the accident were not in dispute. The court found the following:
[2] On February 14, 2008, Ms. Lim was turning left onto Boundary Road from Lougheed Highway when the defendants’ car ran a red light and collided with the passenger side of her vehicle. Ms. Lim’s passenger had to be removed from the car with the Jaws of Life. Ms. Lim was in considerable pain at the scene and was transported to hospital by ambulance and released the next day.
[3] There is no doubt that the plaintiff was injured in the accident. She had bruising to her chest and both shoulders and her neck and left shoulder and arm were sore. For the first two weeks after the accident she was bedridden. For about six weeks Ms. Lim was unable to bathe, wash or brush her hair or dress herself. Her daughter Megan, then 12, helped her with those tasks, while her husband, from whom she had separated but who to this day lives in the basement level of their home, took over housework and child care of Megan and their then five-year-old son.
[4] For two months after the accident Ms. Lim could not drive and could not return to her job as a casino cashier for four and a half months.
Ms. Lim was in good health before the accident and did not suffer from headaches, neck, back or shoulder pain. Ms. Lim suffered soft tissue injuries in the accident that continued to cause her residual pain in her neck, shoulders and lower back at the time of trial. With respect to the above award, Justice Fenton said the following:
[38] The biggest impact on Ms. Lim in terms of loss of enjoyment of life is her inability to cook using a wok, to do the vacuuming and heavy housework she used to do to keep her home in the meticulous order she enjoyed and to do her own gardening and yard work. Her co-workers describe a woman who is less cheerful than she used to be and is often sore and uncomfortable at work. She can no longer pour tea when they go for dim sum together, something she always did before the accident.
[39] There is medical evidence that suggests that the plaintiff’s soft tissue injuries may further improve with exercise over time, although the evidence supports a finding that her shoulders will not likely improve in future.
Failure to Mitigate:
ICBC’s lawyer argued that the plaintiff had failed to mitigate (lessen) her damages by failing to follow the advice of her doctors in three ways: by failing to return to exercise; by not continuing with physiotherapy sessions; and by not following a recommendation for further injections or surgery for her shoulders. Justice Fenton dismissed these arguments and held that the plaintiff acted reasonably. In that regard, she said the following:
[18] A preliminary issue I must decide before assessing damages is whether the plaintiff has failed to mitigate her damages. The defendants must prove that the plaintiff failed to follow recommended treatment by a qualified practitioner that could have overcome or reduced her current or future problems...The applicable standard is reasonableness. The defendants must demonstrate that the plaintiff unreasonably refused to follow the practitioner’s recommendations…
(a) Return to Exercise
[20] The overwhelming medical evidence is that Ms. Lim was advised to return to exercising “as she could tolerate”. She completed an active rehabilitation program, and I find she continues to exercise to some extent.
[21] The defendants’ real complaint in this regard is that Ms. Lim failed to follow Dr. Yu’s recommendation to do shoulder exercises at 50 repetitions per day. The plaintiff stopped doing the exercises because they hurt her and did not seem to be helping.
[22] Dr. Yu’s evidence did not support the defendants’ contention that the plaintiff’s failure to do the 50 repetitions per day has impaired her recovery.
(b) Surgery and Injections
[23] Here too, while Dr. Yu listed further injections or surgery as possible further treatments, he did not opine that they would fix the plaintiff’s problems with her shoulders. The injections offered at least temporary relief. The first and only one the plaintiff underwent gave her two months without pain. The plaintiff described the pain relief as “like a miracle”.
[24] It can be implied from the location of the space into which the steroid medication has to be injected, from Dr. Yu’s evidence and from Ms. Lim’s decision not to repeat it every two months despite the relief that followed, that the needle itself is unpleasant. Further, Dr. Yu acknowledged that injections are not always successful and that patients have to balance the pain of the injection against the pain without it. Surgery carries with it risks and time off work.
[25] A plaintiff is only required to do what is reasonable, and I do not find to be unreasonable Ms. Lim’s decision to decline further injections and surgery and to instead use pain medication to control her symptoms.
(c) Physiotherapy
[26] Physiotherapy was prescribed by Ms. Lim’s family doctor in 2008 and again in September 2011, but Ms. Lim did not complete all of the sessions recommended. She found the physio did not seem to be helping her much and pursued other forms of treatment which she found gave her greater relief, in particular acupuncture. I note that the defendants’ own expert held the view that after the first acute phase, physiotherapy would not improve the plaintiff’s injuries.
[27] Even if some of the missed physiotherapy occurred within the acute phase, I find that the reasonableness of a plaintiff’s failure to follow a particular medical recommendation should not be assessed in isolation from her overall efforts.
[28] Considered as a whole, I find that while Ms. Lim’s efforts to mitigate were not perfect, they were reasonable. In addition to regular acupuncture treatments, she saw her family doctor on about 24 occasions, sought treatment from her orthopaedic specialist on seven, went for treatments at Mountainview Kinesiology for active rehabilitation on 37 occasions and for physiotherapy at Eagle Ridge Aquatic Centre on 39 occasions.
[29] In summary, I do not find that the defendants have proven that the plaintiff failed to mitigate.
Loss of Future Earning Capacity:
This was a central issue in the case. Justice Fenton said the following regarding the legal test for these damages:
[51] As noted by the Court of Appeal in Perren v. Lalari, 2010 BCCA 140, this is a pecuniary head of damages. The plaintiff must therefore prove financial loss due to the impairment from the accident; in other words, if she had not been injured, her future earnings would be higher than they will now be with the injuries.
[52] An assessment of loss of future earning capacity involves consideration of hypothetical events. The plaintiff is therefore not required to prove the hypothetical events on a balance of probabilities. The hypothetical event is to be given weight according to its relative likelihood: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 27.
[53] The test is whether the plaintiff has proven that there is a real and substantial possibility that but for her injuries she would earn more money in future. The defendants say Ms. Lim has failed to meet this burden of proof because she continues to work full-time at the same job she had before the accident, is a valued and respected employee who does her job well, and has not missed a day since returning to work after the acute phase of her injury.
The court awarded the plaintiff $50,000. In doing so, Justice Fenton noted the following:
[59] In these circumstances, I find that there is a real and substantial possibility that Ms. Lim may lose her current job in the future.
[60] If she loses her casino position, which currently pays $15.75 an hour and will pay a maximum of $17 per hour in about three years, Ms. Lim will not have open to her the employment opportunities in areas she would realistically have considered prior to sustaining her injuries. When she first moved to Canada, she worked in a restaurant in the kitchen and as a server. For a time in 2002 she worked as a postal clerk at a drug store. Both positions involve repetitive lifting and carrying.
[61] Ms. Lim’s English is relatively poor. Her loss of physical strength has impaired her employability in physically demanding jobs, jobs that she was formerly qualified to do and did.
[62] I find that the [the plaintiff] … has demonstrated a loss of capacity to earn income in the future. I note as well that even within her current job as a cashier, there is a real and substantial possibility that Ms. Lim will accept fewer overtime shifts because of her injuries…
[68] This is not a case in which damages for loss of future earning capacity can be assessed using an earnings approach. Rather, I must use a capital asset approach. In other words, there is no basis for doing a mathematical calculation of income lost per year and then giving a present value for that loss. At the end of the day…the assessment of damages is a matter of judgment, not a calculation.
(written by Charles D. Jago)
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$15,000 Awarded for Minor Aggravation of Knee Injury & Temporary Neck and Back Pain
In the recently reported case of Everett v. Solvason, 2012 BCSC 140, Mr. Justice Jenkins awarded $15,000 in non-pecuniary damages (pain & suffering) after a three day trial to a plaintiff injured in a motor vehicle accident in September 2009 on the 152nd street onramp to Highway 1. The plaintiff had been injured in an earlier car accident in 2008 from which he had made a 90% recovery. He still suffered from ongoing chronic neck and back pain as a result of his earlier accident. He had settled his earlier car accident claim for $15,000. One month prior to the accident, the plaintiff had injured his knee in a softball game. A major issue in the case was whether the 2009 accident aggravated his knee injury.
Justice Jenkins found that the plaintiff likely suffered a “minor aggravation to the knee injury” as a result of the accident. Regarding his injuries as a whole, Justice Jenkins said the following:
[24] As a result of this evidence, I find that Mr. Everett had recovered significantly by the summer of 2010 and was able to undertake most activities he had been engaged in prior to the accident of September 3, 2009 but for the injuries sustained in the softball incident.
[25] Regarding the back and neck pain suffered by the plaintiff, the defendant accepts that the plaintiff suffered a temporary aggravation of his pre-existing chronic pain condition, originally caused by the impact of the 2008 accident in which he was a passenger in his mother’s vehicle. Dr. Parhar found that the plaintiff suffered paracervical muscle strain, paralumbar muscle strain and muscle tension headaches arising from the accidents of May 16, 2008 and September 3, 2009. Neither Dr. Chin nor Dr. Day commented on the neck and back pain.
[26] I also note that the use of prescriptions for Tylenol 3, Naproxen and another drug, two of which were for pain and one a muscle relaxant, fell off significantly during 2010 and is consistent with the plaintiff’s claim that by mid 2010 he was having some good days and some bad days. Likewise with the chiropractic and massage therapy, these treatments fell off considerably after the summer of 2010.
[27] Although the plaintiff continued to have some neck and back pain along with headaches after the summer of 2010, the extent of those symptoms was nominal after that time. I find that the plaintiff did suffer from neck and back pain together with headaches as a result of the aggravation of pre-existing injuries caused by the accident of September 3, 2009 for a period of approximately one year.
(written by Charles D. Jago)
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Court Awards $65,000 for Chronic Back Pain
In the recently published case of Rutter v. Allen, 2012 BSC 135, Mr Justice Joyce awarded $65,000 in non-pecuniary damages (pain and suffering) after a four day trail to a plaintiff injured in a four vehicle accident on the Trans-Canada Highway in December 2006 when his vehicle was rear ended. With respect to the injuries sustained by the plaintiff, Justice Joyce said the following:
[53] I find that Mr. Rutter’s suffers chronic back pain that was caused by the accident of December 15, 2006. I find further that it is unlikely that he will return to his pre-accident level of activity, although it is likely that he can achieve some improvement with regular exercise, including core muscle strength training.
In making the above award, Justice Joyce said the following:
[65] Mr. Rutter led a very active life before the accident and was involved in a number of sports, particularly golf and running. His injuries, particularly the back injury, have led to a significant change in lifestyle for Mr. Rutter. Since the accident, Mr. Rutter has had to reduce his sporting activities substantially. He is also curtailed somewhat in his day-to-day activities, including assisting with housework and household maintenance. He has difficulty sleeping and, at times, is more irritable than he was before the accident. Fortunately, Mr. Rutter has been able to maintain his full-time employment despite his symptoms. I am satisfied that Mr. Rutter finds his life today more frustrating and less enjoyable than previously. Mr. Rutter suffers chronic back pain that is likely to continue well into the future, although Dr. le Nobel is of the opinion that if Mr. Rutter engages in an exercise regime that is developed and maintained with the assistance of a physiotherapist and kinesiologist some improvement in his symptoms is probable.
Loss of Future Earning Capacity:
The plaintiff’s sought $75,000 to compensate him for a loss of earning capacity. Ultimately, his claim for loss of future earning capacity was dismissed. With respect to his decision not to make an award for this claim, Justice Joyce held that the plaintiff failed to prove a real possibility of a future income loss resulting from his injuries. In that regard he said the following:
[93] I am satisfied that if the plaintiff were to lose his job, it would not be because of the accident. He has proven himself capable of working, without missing any time, since the accident. He has performed his job well, according to his periodic assessments. If he requires improvement with regard to his current position, it is with regard to interpersonal skills and communication. In my view, Mr. Rutter is an intelligent man with a good work ethic and is very capable of improving in these areas. In my view, his fears regarding the security of his employment with his current employer are not well-founded.
[94] Mr. Rutter submits, however, that circumstances other than his performance might result in the loss of his job and, if that were to occur, he would be less marketable as an employee. That would certainly be the case with respect to jobs requiring significant physical capacity, but Mr. Rutter’s experience is in the field of sales and management, where he has proven himself capable, both before and after the accident. In my view, there is no realistic possibility of his pursuing or attempting to pursue a career that would require a physical capacity beyond that which his present job requires, which he has been able to handle.
[95] With regard to the lost opportunity to start up a renovation business, I am not satisfied that there was a real and substantial possibility that he would have pursued such an undertaking. Mr. Rutter said he had thought of starting such a business when he turned 55. He said he talked to his friend about going into business, but the friend did not testify. No plan was put forward concerning the proposed business. Mr. Rutter has done some home renovations and did some work on the house that he built in Houston, which I will deal with more fully later in these Reasons, but he is not a qualified tradesperson. Further, I do not believe it is reasonable to suppose that Mr. Rutter could have established and run a renovation business that could provide remuneration greater than that which he has enjoyed and can continue to enjoy from his current occupation.
[96] I am not satisfied that there is any basis upon which Mr. Rutter is entitled to compensation for loss of opportunity or capacity to earn income in the future.
(written by Charles D. Jago)
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$20,000 Awarded for Mild Soft Tissue Injury
Monday, 30 April 2012
In the recent case of Wen v. Tsao (27 April 2012), Vancouver, M082970 (B.C.S.C.) Madam Justice Gerow awarded the plaintiff $20,000 in non-pecuniary damages (pain & suffering) after a three day trial for injuries sustained in a low-velocity motor vehicle accident in January 2007 in Richmond, B.C. The plaintiff was represented at trial by Charles D. Jago (an associate at Simpson, Thomas & Associates).
The plaintiff was stopped at in intersection at the time of the accident. The Defendants' vehicle approached from behind. The Defendant claimed that he was travelling between 5 to 10 km per hour when he applied his brakes. He claimed that his vehicle skidded on icy pavement before hitting the rear end of the plaintiff's vehicle. Both drivers exited their vehicles to view the damage and exchanged information. No emergency vehicles or police attended. Following the accident, the plaintiff continued on his way. However, within days of the accident, the plaintiff began to recognize symptoms of pain and stiffness in his neck and low back. As a result, he went to visit his doctor three days after the accident and was diagnosed with a "whiplash" injury to his neck and low back.
The plaintiff was prescribed 24 physiotherapy sessions, followed by an active rehabilitation program at KARP Rehabilitation. The plaintiff's active rehabilitation program finished in November 2007. The plaintiff's condition improved as a result of the treatments. The plaintiff, a hairdresser, lost no time off work.
The damage to the vehicles involved in the accident was limited. ICBC estimated the cost of repairing the damage to the plaintiff's vehicle, a Honda Civic, to be $870.15. The cost of repairing the damage to the Defedants' vehicle, a Honda Element, was estimated to be $286.58. ICBC refused the plaintiff's personal injury claim on the grounds that there could be no "compensible injury" because of the minor damage to the vehicles.
Justice Gerow held that it is not the law that a plaintiff cannot recover if the damage to the vehicles involved in the accident is minor. She found that evidence showed that the plaintiff was injured in the accident. In particular, she found that the plaintiff had sustained a "mild soft tissue injury" that resolved in ten months with "minor flare ups" thereafter. The court also awarded $408.11 in damages for the plaintiff's out of pocket expenses. The plaintiff was awarded $11,000 in costs, under the fast track rule.
(written by Charles D. Jago)
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$65,000 Awarded for Soft Tissue Injuries & Chronic Pain Disorder
Saturday, 21 April 2012
In the recent case of Loveys v. Fleetham, 2012 BCSC 358, Mr. Justice Armstrong awarded a plaintiff $65,000 in non-pecuniary damages (pain & suffering) following a seventeen day trial for injuries sustained in a motor vehicle accident in November 2006.
The plaintiff argued that the accident caused a chronic pain disorder associated with psychological factors, including an anxiety order and an aggravation of her pre-existing depression and bulimia.
Failure to Lead Evidence of Treating Doctors:
In his decision, Mr. Justice Armstrong noted criticized the plaintiff for not leading evidence of her treating physicians. In that regard he said the following:
[119] There are significant shortcomings in the medical evidence offered to support Ms. Loveys’ claims. The difficulties in assessing her claim stem, in part, from the absence of any medical opinions from physicians treating the plaintiff for the first 2 1/2 years after the accident. The three opinions relied on by the plaintiff were very much dependent on the plaintiff’s recollection of events, records and opinions created by others in the immediate aftermath of the accident and the intervening 2 1/2 years. There is no opinion from Dr. Bola-Reebye, the plaintiff's initial attending family physician. Ms. Loveys was seen by a physiatrist, Dr. Jaworski, and a psychiatrist, Dr. Zaitzow, both of whom appear to have provided reports which were not tendered at the trial but were referenced in the opinions of Dr. Mallavarapu and Dr. Hirsch. I was not asked to draw any adverse inference from the plaintiff's failure to call evidence from these treating physicians.
Compounding the problem, the plaintiff’s psychiatric expert confirmed in cross-examination that “psychiatric assessments and diagnosis are more reliable when the data is obtained closer to the causative event”.
I regards to the plaintiff’s injuries the court concluded that she had sustained soft tissue injuries to her neck, back and shoulder that “evolved” into a chronic pain disorder. The court futher accepted that the plaintiff’s pre-existing symptoms of depression and bulimia had been aggravated by the accident. However, Justice Armstrong was not persuaded that the plaintiff’s psychiatric problems were caused by the accident. In that regard he said the following:
[191… the plaintiff has not proven that “but for the accident” she would have suffered the recurrent bulimia, acute stress disorder and/or depression.
[192] Ms. Loveys experienced significant psychological symptoms after the accident but they have not been proven to have resulted from the car accident. On the evidence it is equally possible she would have developed a major depression even if the motor-vehicle accident had not occurred. The history of disputes with CRA, the bankruptcy, the serious tax arrears, the death of her friend, her parents’ illness, and the strata owners litigation all indicate she faced serious stressors that would have occurred independent of the accident. She had already had an attack of bulimia in March 2006 and was under stress at the time of the accident.
[193] In my view Ms. Loveys’ psychiatric symptoms represented a divisible injury which is separate from the initial pain and chronic pain complaints that have persisted.
[194] The plaintiff in the case at bar seems to possess a “crumbling skull” with respect to her psychiatric condition…
[195] I accept that the plaintiff’s psychiatric symptoms diagnosed by Dr. Mallavarapu may have had an impact on perpetuation of her chronic pain symptoms. To the extent there was a connection between her continuing chronic pain and those symptoms, the damages caused by the chronic pain are fully compensable. In that respect, the injuries are indivisible. However any other damage caused by the psychiatric symptoms not connected to the chronic pain is divisible and is not compensable.
In awarding the plaintiff the above amount, Justice Armstong said the following:
[214] I have concluded that Ms. Loveys has endured significant suffering and inconvenience resulting from the injuries from the accident. I observe that she will likely have symptoms of chronic pain for the balance of her life although there is some possibility she may yet achieve some improvement. Although I do not attribute her recurrent bulimia or her depression to the accident I accept that the duration of her physical symptoms and the interference with her very active lifestyle are important factors in this assessment. The presence of chronic pain has, for this very active woman, impacted her work life, her competitive and recreational dance, and the level of enjoyment she achieved from her other recreational choices. The plaintiff had an extraordinary history of physical accomplishments in her vocational and recreational life before the accident and her return to full participation in these activities is guarded.
[215] Her injuries will not prevent her from returning to most of those activities; she will not be able to perform in those areas with the same intensity and for the same duration she enjoyed prior to her injuries.
[216] Even on an intermittent basis, chronic pain deprives a victim of the enjoyment of a full and active life. Chronic pain coupled with the limitations on Ms. Loveys' recreational activity and work will play an important part limiting her future enjoyment. I must consider that her low back pain and toe pain will also detract from her enjoyment of life as will her psychiatric health issues. In view of all of these factors I conclude that she is entitled to $65,000 for her non-pecuniary losses.
Loss of Future Earning Capacity:
Justice Armstrong made a further award of $100,000 the plaintiff’s loss of earning capacity. In that regard he said the following:
[312] I conclude Ms. Loveys is less capable overall of earning income due to the compensable injuries I have described...The evidence establishes that there is a real and substantial possibility that her ongoing chronic pain will impair her future income prospects. It is Ms. Loveys’ capacity that has been diminished because of the injuries.
[313] Although she will be able to perform substantially all of her duties, I conclude that the chronic nature of her physical complaints will limit her effectiveness and durability in the business of real estate sales. I accept the evidence she gave that she is less able to perform a door-to-door marketing campaign on a sustained basis as she did before the accident. I also accept that her ability to attend to office work on a prolonged basis is limited and that she will need to make adjustments in her schedule to accommodate these shortcomings. In the end I am satisfied there is a substantial likelihood that she will earn less commission income in the future. Ms. Loveys related her immediate post-accident losses to specific opportunities she was pursuing in November 2006 but which did not result in sales. Some of the facts focused on were the result of speculation and hearsay as evidence of the lost sales opportunities in 2007. However, I conclude the amount of income loss and duration of that loss is to be measured against medical and vocational evidence.
(written by Charles D. Jago)
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$50,000 Awarded for Low Back Strain & Chonic Low Back Pain
Monday, 16 April 2012
In the recently reported case of Connolly v. Cowie, 2012 BCSC 242, Madame Justice Butler awarded $50,000 in non-pecuniary damages (pain & suffering) after a 3 day trial to a plaintiff injured in a motor vehicle accident in January 2009. The accident occurred when her car was rear ended by the defendant’s car. The plaintiff was 35 years old at the time of the accident and sustained a strain in her lower back. She developed chronic pain in her back over time. With respect to the plaintiff’s injuries and the award, Justice Butler said the following: [41] … Ms. Connolly suffered a significant low back strain as a result of the accident. The accident has caused injury to the myofascial tissues in her left sacroiliac region. The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy. She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform. She is still able to do most household tasks, but it is likely she will continue to experience pain with activities. It is unlikely that the pain symptoms will resolve. [45] Here, Ms. Connolly is unable to continue with long distance running. She does not take medications like Ms. Dutchak, but has persisted with more restricted activities. In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors. Her inability to continue with that is a significant loss to her. She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor. She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people. She is no longer able to do that and this is a significant loss. [46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future... Loss of Future Earning Capacity: Justice Butler also awarded $15,000 to the plaintiff for a loss of future earning capacity. In the years preceding and following the accident, the plaintiff had earned very little. The court noted that the prospect of the plaintiff living with some level of ongoing pain, even if manageable, had a real and substantial possibility of rendering the plaintiff less able to earn income, especially because the plaintiff’s employment options were predominantly physical in nature. In making the award the court said the following: [54] Quantifying the loss is difficult. Ms. Connolly does not have a history of earning significant amounts of income. I conclude that she will continue to be the primary caregiver and homemaker for her family and this will preclude her from working extensively outside of the home in the near future. While there may be jobs available to her that would provide higher levels of income than she could have earned as a fitness instructor, such work may not fit into her schedule as readily as that work would have. As a result, she may not be able to take full advantage of those opportunities. The loss of work within a flexible schedule represents a real loss to Ms. Connolly and forms the primary basis for this claim. When I consider all of these factors, I conclude that a reasonable assessment of her loss of future earning capacity is $15,000. I appreciate that this is not a significant sum. It does, however, represent three times her highest level of earnings in the years after the birth of her second child. As the children get older and she has more flexibility to work outside of the home, I conclude that the chance of an ongoing loss diminishes. (written by Charles D. Jago) Looking for an accident lawyer? Call us.
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Court Tells ICBC More Than Suspicion Required to Prove Breach of Insurance Policy
Saturday, 14 April 2012
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| Suspicion isn't enough! |
In the recently reported Provincial Court case of Slawter v. ICBC, 2011 BCPC 0419, Judge St. Pierre confirmed that more than mere suspicion of a breach of policy is required to deny a claim. In this case, the claimant argued that his car was stolen and burned. He made a claim for the replacement value of the vehicle and was denied by ICBC.
ICBC asserted that the denial was warranted as their "investigation" revealed that there were some "inconsistencies" in the claimant's reporting on certain items, such as the location of his keys. Accordingly, ICBC alleged that the circumstances of the theft and destruction of the vehicle by fire led to the conclusion that the claimant had some responsibility for the theft.
In his reasons, Judge St. Pierre affirmed that there is one standard of proof for trying civil matters: a balance of probabilities:
[16] The Supreme Court of Canada said [see F.H. v. McDougall, 2008 SCC 53] … that there is only one standard of proof in a civil case and that is proof on a balance of probabilities. The Court said that there is only one legal rule that applies in all cases and that the evidence must be scrutinized with care by the trial judge in deciding whether it is more likely than not that an alleged event has occurred. [17] In other words, what the Supreme Court of Canada is saying is that trial judges are responsible for scrutinizing evidence carefully regardless of whether there is a serious allegation of fraud or sex assault or something else. The court held that the claimant successfully proved that his car had been stolen and that he was entitled to indemnification from ICBC as an insured. In respect of ICBC’s claim to the contrary, Judge St. Pierre said the following: [37] In considering all of the evidence, I have to say there is no evidence to refute or to contradict Mr. Slawter's claim that he was driving the vehicle on July 19th and that he was home that evening and that his vehicle was missing later. [38] There is suspicion; there are facts that were brought out by the defence and inconsistencies within the story and version of Mr. Slawter and various witnesses that could lead one to conclude that there is suspicion about how this vehicle went missing, but in my mind he has led enough evidence to prove that he has established on the balance of probabilities that he was covered that day and that he suffered a loss. [39] I am convinced that Mr. Slawter had a valid policy of automobile insurance on July 19th, 2009, that he suffered a loss on that day. There is only speculation to suggest otherwise. [40] I come to this conclusion not simply because he testified under oath that he suffered a loss, in fact if those earlier cases stood for the proposition that that was enough, then they are wrong. The Court must consider all of the evidence. I have to be convinced on a balance of probabilities that Colin Slawter suffered a loss and is entitled to compensation under his policy on the date of the loss. [41] In this case the question comes down to whether the defendant has met, on a balance of probabilities, that there was a breach in terms of a policy of insurance. Again in my mind looking at all of the evidence that the defence has pointed to with respect to this matter, what it all boils down to is there is lots of speculation involved, there are lots of reasons to be suspicious, but the evidence has to meet a clear standard and that is the standard of balance of probabilities that under s. 75(b)and (c) of the Insurance (Vehicle) Act it has been established that there was fraud, that there was misleading and wilfully false statements that was material and capable of affecting the insurer's model. [42] With respect to the fraud, I do not think that any evidence has established that. There is certainly evidence capable again of raising a suspicion, but there is no clear and cogent evidence that meets the standard of a balance of probabilities. By using those words "clear and cogent" again I do not mean to say that that is some kind of different standard; the evidence has to be clear and cogent in any case where a standard of proof has to be met on a balance of probability. [43] Whether Mr. Slawter made wilfully false statements that were material, I find the statements that he did make that were vague and perhaps inaccurate have not been proved to have been made wilfully. Memories suffer from passage of time. They suffer from a number of different human foibles and weaknesses, but in this case I listened carefully to all of the evidence and I could not conclude at all on the balance of probabilities that Mr. Slawter made in the course of this claim and its investigation any wilfully false statements to the Insurance Corporation of British Columbia, and on that basis I have to find in his favour, that he is entitled to be indemnified for his losses. In the result, the claimant was awarded $8,256.08 for the loss of his car. He was awarded an additional $2,427.54 for the cost of a rental car. For an encore, ICBC argued that the Provincial Court Rules do not allow a successful party to recover disbursements: costs of faxes, photocopies etc. The Court disagreed with that interpretation and awarded the claimant disbursements in the amount of $911.38. (written by Charles D. Jago) Need help with your ICBC injury claim? Call us.
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