Plaintiff’s Hit And Run Claim Dismissed For Not Providing Proper Section 24(2) Notice Under Insurance (Vehicle) Act

In Parmar Estate v. British Columbia, the Plaintiffs were killed in a hit and run accident, with the estate consequently suing for damages. Although the Notice of Civil Claim was served and filed within the appropriate limitation periods, the Plaintiffs did not notify ICBC within six months of the accident of their intention to bring a hit and run claim, which is a requirement under Section 24(2) of the Insurance (Vehicle) Act.


By way of a Rule 9-6 Summary Judgment application, ICBC’S sought to have the Plaintiffs’ claims dismissed for not complying with the Section 24(2) notice requirement, nor the “reasonable efforts” obligation under Section 24(5) of the Insurance (Vehicle) Act.


Counsel for the Plaintiffs argued that Section 24(2) is not absolute, and must be read in conjunction with Section 24(3), which provides that after an action referred to in Section 24(1) has been commenced, it is alleged that injury, death, or property damage was caused or contributed to by an unknown motorist, the court can add ICBC as a nominal defendant.


ICBC’S lawyer argued that, as the proper notice under Section 24(2) was not given, there was no genuine issue to be tried. As a result, the Plaintiffs’ claims should be dismissed.


The Court dismissed the Plaintiffs’ claims for failing to comply with the Section 24(2) notice requirement, commenting that :


[15] I do not accept the plaintiffs’ interpretation of s. 24 of the Act. Their reliance on the Jamt decision is misplaced, particularly, as noted in that decision, ICBC was named as a nominal defendant at the commencement of this action.


[16] Here, it is clear that ICBC did not receive notice of the allegations against an unknown driver within six months of the accident. The notice of civil claim can serve as notice to ICBC under s. 24(2). Even so, the notice of civil claim was not filed until two years after the accident and was not served until three years after the accident.


[17] The plaintiffs provide no explanation for the lack of notice or for the failure to serve the notice of claim for a year following its filing. As noted in the chronology, the accident was not reported to ICBC until March or April 2014. There is no basis upon which I can conclude that the notice was given to ICBC “as soon as reasonably practicable”. The lack of notice is fatal to the plaintiffs’ claim.


[18] I am satisfied that the action against ICBC raises no genuine triable issue and must be dismissed.

Court Awards Full Fast Track Costs To Plaintiff In Case Settled 7 Months Prior To Trial

In Yuan v. Fan, the Plaintiff was injured in a head on collision, and consequently sued for damages. Liability was admitted by ICBC’S lawyer on behalf of the Defendant.


Prior to trial, there was an Examination for Discovery of the Plaintiff, as well as an exchange of documentation between the parties. The Plaintiff produced two expert reports, one from her family doctor, and one from a psychiatrist. Settlement proposals were exchanged between the parties, with the matter finally settling approximately seven months before the scheduled trial date.


Some ICBC injury claims proceed through fast track litigation, which is a faster way to have a case proceed through the litigation process. The fast track process applies to ICBC injury claims that can be completed in three days or less, or to those ICBC injury claims where the amount of damages sought by the Plaintiff is less than $100,000.00. Subject to a Court’s discretion, there is usually a set sum of costs awarded to the successful party in a fast track matter. Counsel for the Plaintiff in the case at bar proceeded by way of fast track litigation.


Counsel for the Plaintiff sought the full fast track costs amount of $6,500.00, arguing that there had been “significant preparation for trial”. ICBC’S lawyer argued that there had not been significant preparation for trial.


The Court, in noting that whether or not significant preparation for trial had occurred depends on the circumstances of each case, awarded the Plaintiff full costs.


[8] Whether the successful party’s case was significantly ready for trial is a case‑specific inquiry. In Noori v. Pochman, 2016 BCSC 1329, at paragraph 6, the court states:


Different cases involving different parties, different injuries, and different issues will be ready for trial at different times depending on the circumstances.


[10] In the present case liability was admitted, therefore work in that regard wasn’t needed. The plaintiff abandoned her claim for wage loss, and therefore, no pre-trial work was necessary in that regard. Discoveries had been completed, document exchanges had been completed, and medicolegal reports had been obtained. Detailed settlement offers had been exchanged. All that remained to be done was the filing of a trial brief, attending a trial management conference, and immediate trial preparation. Immediate trial preparation is required in each and every case whether settlement occurs two weeks, or two months prior to trial.


[11] This was not a complex case. It was a simple case of assessing damages where there wasn’t a wage loss claim. Simple cases require less work to be ready for trial. The plaintiff’s case has met the threshold of being significantly prepared for trial in all the circumstances. I award the full fast track cap.

Court Awards $4.5 Million For Cost Of Future Care In Paraplegia Case

In Warick v. Diwell, the Plaintiff was seriously injured in a head on collision in which other occupants of the vehicle were killed. The Plaintiff commenced legal proceedings, seeking compensation for numerous types of damages, all of which were settled with the exception of the cost of future care.


The Plaintiff suffered a variety of injuries, however the specific ones that the Court noted would have the greatest impact with respect to her care were the spinal cord injury which paralyzed her from the waist done; the numerous surgeries on her intestines and bladder ; and a hand and wrist fracture.


A variety of future cost of care items were in dispute, with the most significant one being the cost of home care of the Plaintiff, with the Court awarding over $3 Million as a present value of the ongoing cost. Other notable items included awards for medications, travel, housekeeping, and mobility aids.


In total, the Court would award slightly over $4.5 Million in future care costs to the Plaintiff, commenting :


[203]     Claims made for future care must be both medically justified and reasonable. An award “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health”:  Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at paras. 199 and 201; aff’d (1987), 49 B.C.L.R (2d) 99 (C.A.).


[204]     This requirement of medical justification, as opposed to medical necessity “requires only some evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”:  Harrington v. Sangha, 2011 BCSC 1035, at para. 151.


[207]     Damages for the cost of future care are assessed, not mathematically calculated:  Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31. There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

ICBC’S “Checkered Record” Of Funding Past Treatments Affects Court’s Ruling On Section 83 Deduction Application

In Olson v. Farran, the Plaintiff was injured in a motor vehicle accident, and subsequently advanced an ICBC claim for non-pecuniary damages, as well as various other types of damages, including special damages and the cost of future care.


At trial, the Court awarded the Plaintiff damages under numerous categories, including special damages and the cost of future care.


ICBC’S lawyer took issue with the amounts awarded under these categories, and sought a deduction pursuant to Section 83 of the Insurance (Vehicle) Act, which allows the Court to reduce the awards if a claimant has received or is entitled to receive benefits from ICBC. For example, if a claimant is awarded a sum of money for future treatment, however ICBC would pay this anyways in the future under Part 7 benefits, then this amount can be deducted from the court award. However, there is not always a guarantee that ICBC will make such payments in the future, which is an important factor for a Court to consider when hearing applications pursuant to Section 83 of the Insurance (Vehicle) Act. Certain benefits can be mandatory, however certain benefits are only discretionary. When benefits are only discretionary in nature, this means that ICBC does not have to pay such benefits in the future. This uncertainly is typically the key issue in Section 83 applications for deductions of trial awards.


In the case at bar, ICBC had actually paid out the entire amount of the judgement to counsel for the Plaintiff, who deposited the funds into a trust account. Shortly thereafter, however, ICBC’S lawyer gave notice of an intention to apply for a deduction in the awards for special damages and the cost of future care. Plaintiff’s counsel then filed and delivered an acknowledgment of payment of the judgment in full, and then paid out the judgment funds to the Plaintiff.


In addition to invoking the doctrines of mootness, estoppel, and abuse of process, counsel for the Plaintiff argued that the benefits that ICBC’S lawyer sought to deduct were discretionary, and that there was some uncertainty as to whether or not ICBC would even pay any future benefits.


The Court did not allow for any deductions from the special damages trial award on the basis of mootness, but did allow for a partial deduction from the cost of care award at trial. The Court was concerned with ICBC’S history of actually paying for the Plaintiff’s treatment, leading to serious concerns as to whether future benefits would be paid by ICBC.


[71] The onus of showing that a deduction should be made is on the defendant. I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid. Any such uncertainty must be resolved in favour of the plaintiff.


[72] Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.


[73] In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.


[74] Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition. Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.


[75] The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.


[76] The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.


[77] I disagree. The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson. Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

Court of Appeal Rules That ICBC Part 7 Benefits Are Excluded From Repayment Under Subrogated Claims

In Brugger v. The Trustees of The IWA, the Plaintiff was injured in a motor vehicle accident. Pursuant to a subrogation agreement, he received long term disability benefits through the Forest Industry LTD Trust. Under the provisions of the subrogation agreement, the Plaintiff agreed to repay the Trustees the amount of repayable LTD benefits. The Plaintiff also received Part 7 interim wage loss benefits through ICBC.


At one point, the Trustees demanded repayment of the repayable LTD benefits, however the Plaintiff refused, necessitating the cessation of the LTD benefits. The Plaintiff then commenced proceedings seeking damages for the wrongful termination of the LTD benefits. The Trustees counterclaimed for reimbursement.


At a Summary Trial application, the chambers judge ordered the Plaintiff to pay back a certain amount of the benefits, which also factored in Part 7 benefits from ICBC.


The Plaintiff appealed, arguing that Part 7 benefits did not apply to amounts owed pursuant to the subrogation agreement.


The Court of Appeal ruled that the chambers judge had erred when he ruled that Part 7 benefits were to be included as “compensation from … a person whose acts have caused or are alleged to have caused the Disability“. The rationale for the Court of Appeal’s decision is that Part 7 benefits are no fault, first party insurance benefits.


[48]         In my view, Part 7 benefits should not be included in Gross Compensation or calculation of the reimbursement obligation. Such benefits are not paid by or on behalf of a person whose acts or omissions have caused or are alleged to have caused the disability. They are not paid pursuant to Part 6 of the Regulation, which describes third-party liability insurance coverage; they are paid, rather, by the Disabled Employee’s insurer as first-party benefits. Pursuant to s. 79 of the Regulation, they are paid “to an insured in respect of death or injury caused by an accident that arises out of the use or operation of a vehicle” regardless of fault.


[51]         While the Trustees are given authority to set the terms upon which Plan Members are entitled to benefits, and have broad discretion to determine what portion of Gross Compensation represents compensation for wage loss, they have established a Plan and must abide by its terms. Without amending the Plan, they do not have discretion to include in Gross Compensation amounts received by the member that are not paid by or on behalf of a tortfeasor.


[65]         In my view, the Trustees and the chambers judge erred in determining the appellant’s obligation to repay benefits to the Trustees by considering Part 7 no-fault benefits to be compensation paid by or on behalf of a person who caused the appellant’s disability …

Plaintiffs’ Claims Dismissed For Not Commencing Litigation Within Two Year Limitation Period

In DeWolfe v. Jones, a driver and passenger were injured in a motor vehicle accident in 2005. The husband and wife elected to deal directly with ICBC on their own, and did not retain counsel. More than four years later, both Plaintiffs commenced legal proceedings. Almost two years later, both Plaintiffs filed Amended Notices of Civil Claims.


ICBC’S lawyer filed Responses to both claims, alleging that both claims were statute barred, as the Plaintiffs did not commence legal proceedings within the two year period of time from the date of the accident. A Summary Trial application pursuant to Rule 9-7 of the Supreme Court Civil Rules was brought to dismiss both of the Plaintiffs’ claims.


Counsel for the Plaintiffs sought to rely on the doctrine of promissory estoppel. To succeed in such an argument, it would need to be shown that the other party, by words or conduct, made a promise or assurance that was intended to affect the legal relationship between the parties, and to be acted on ; and, in reliance on the representation, the Plaintiffs acted on it or in some way changed their position. In order for promissory estoppel to apply, the Court would also need to be of the view that it would be unconscionable to allow the Defendant to resile from its’ position.


Counsel for the Plaintiffs relied on a statement made by the adjuster, however the Court was not of the opinion that the Defendants would be estopped from relying on the limitation defence available to them.


In dismissing the Plaintiffs’ claims, the Court commented :


[31]         The plaintiffs in the present case suggest that the main concern is not that Ms. Johal was silent as to any applicable limitation period, but that she made an “affirmative statement denying the existence or application of any limitation period.”


[35]         In these circumstances, the plaintiffs submit it should be inferred that a promise was made that the limitation period would not be enforced.


[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.


[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.


[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.

Rear Ended Motorist Deemed Fully Liable For Accident

In Bingul v. Youngson, the Plaintiff was injured in a motor vehicle accident when he was rear ended by a dump truck just before an intersection. The Plaintiff sued for damages, however ICBC’S lawyer denied liability.


Counsel for the Plaintiff took the position that the Defendant’s negligence in not being able to stop in time is what caused the accident. ICBC’S lawyer argued that the Plaintiff’s negligence caused the accident, as the Plaintiff abruptly pulled into the Defendant’s lane when it was not safe to do so.


In the vast majority of cases, the driver of a car that strikes another car from behind is liable for the accident, as there is a prima facie case of negligence against the rear driver in such situations. The onus is on the driver of the rear vehicle to show that he or she did not cause the accident. It is usually a very high onus to meet.


In the case at bar, the Court had concerns with the Plaintiff’s credibility, given his inconsistencies in testimony vis a vis Examination for Discovery and trial, and vis a vis a statement made to an adjuster and his testimony at trial.


In finding the Plaintiff fully liable for the accident by determining that the sudden lane change made by the Plaintiff negated the prima facie assumption of liability on the rear driver, the Court commented :


[47] I have already noted a significant inconsistency between the statement Mr. Bingul made to an insurance adjuster on November 28, 2011 and the testimony he gave at trial about the timing of the collision in relation to the green light for westbound traffic on Broadway; and some discrepancies between answers given on examination for discovery and at trial. Mr. Bingul’s testimony about when he first saw Mr. Youngson’s vehicle and when that vehicle changed lanes, and from which lane, was less than precise.


[53] Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident. I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.


[55] Mr. Bingul was aware that there was a large and heavy vehicle in the lane. I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

Court Adopts Capital Asset Approach In Awarding Plaintiff $1,400,000.00 In Diminished Earning Capacity

In Symons v. ICBC, the Plaintiff was seriously injured in a motor vehicle accident, and consequently commenced legal proceedings, seeking damages for pain and suffering, income loss, loss of housekeeping capacity, diminished earning capacity, cost of future care, and out of pocket expenses.


The Defendant driver did not defend the action, however ICBC did, originally denying liability and alleging contributory negligence against the Plaintiff. However, liability was conceded at trial by ICBC, who did not pursue its’ claim of contributory negligence, nor did it argue that the Plaintiff had failed to mitigate her damages.


The Plaintiff suffered a variety of injuries, most notably to her lower back, which required three surgeries. She also underwent psychiatric treatment for post-traumatic stress disorder and a major depressive disorder.


Determining an appropriate award for diminished earning capacity is not always an easy task, particularly in the case at bar, where the Court noted that neither side had provided the Court with actuarial evidence.


The Court found that the Plaintiff’s expert evidence clearly established that there would be a real and substantial possibility that the Plaintiff’s injuries and continuing disabilities would cause her to lose income in the future. The Court also noted that, at the time of the accident, the Plaintiff had been very well motivated to perform well with her business as a self-employed first aid attendant in the oil and gas industry.


Rather than using the earnings approach in an attempt to quantify diminished earning capacity, the Court adopted the other accepted approach, that being the capital asset approach, as quantification of diminished earning capacity was not easily measurable . This approach recognizes that there has been an impairment to the Plaintiff’s ability to earn income. Factors that a Court will consider when adopting such an approach include whether the Plaintiff has been rendered less capable overall from earning income from all types of employment; whether the Plaintiff is less marketable or attractive as an employee to potential employers; whether the Plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him or her, had he or she not been injured; and,whether the Plaintiff is less valuable to himself or herself as a person capable of earning income in a competitive labour market.


Counsel for the Plaintiff argued that the Plaintiff would most likely have worked in her chosen field to retirement had she not been involved in the accident, which the Court found to be a real possibility. The Court was critical of the position taken by ICBC’S lawyer that the Plaintiff could work part-time in her chosen profession, and supplement her income from a proposed horse breeding business, stating that “this is just so speculative as to be nonsense”.


In awarding the Plaintiff $1,400,000.00 in diminished earning capacity, the Court commented that :


[106] The third party argued that the plaintiff could work part-time at $20 to $25 per hour, making about $25,000 per year. Then, income from the plaintiff’s proposed horse breeding business would bring her up to pre-accident earnings within a year or two. This is just so speculative as to be nonsense. There was no evidence as to what a horse breeder could make and no substantive evidence that the plaintiff was so qualified except for her own love of horses. The prospect of the plaintiff working regular part-time immediately at the rate suggested by the third party is slim. The third party also argued without evidence that job opportunities for first aid attendants had dropped along with pay rates such that the plaintiff would probably not be earning more than $25,000 as a first aid attendant in any event. There was then the suggestion, not put to the plaintiff, that she would likely then have “decided to cut her losses and move onto something else”. In the alternative, the third party suggested annualized losses in the $20,000 to $30,000 range to age 65 which, given discount factors, would result in loss of earning capacity in the range of $300,000 to $450,000. No formula was given for this calculation.


[107] The plaintiff argued that the plaintiff would most likely have worked as a first aid attendant to retirement if the accident had not occurred. This is certainly a real possibility with the additional likelihood that the plaintiff would have advanced her skills and her reputation in the business. The plaintiff suggested that the plaintiff would have earned between $50,700 to $80,700 per year. This is less than the $87,900 per year projected by the third party for past wage loss. Against this is the real possibility that the plaintiff will return to part-time employment. The potential job as a riding instructor would earn the plaintiff only $3,360 per year. The plaintiff agreed that a more regular part-time job could earn the plaintiff as much as $26,000 per year. This left the range of possible annual income loss between $25,000 and $80,700. The plaintiff would then apply the discount table from Appendix E of the Civil Jury Instructions as was done in Erickson v. Bowie, 2007 BCSC 1465 (CanLII) at para. 5, a case provided by the third party, to come to a range from $593,500 to $1,940,700 for future income loss to retirement at age 65. This discount rate is set by the Chief Justice pursuant to s. 56 Law and Equity Act, R.S.B.C. 1996, c. 253 and BC Reg 74/2014. Ultimately, the plaintiff sought an award in the range of $1,500,000 to $2,000,000.


[108] After consideration of all of the factors here and without mathematical precision, I have concluded that the plaintiff would likely have made about $80,000 per year in her first aid business and would have worked in this business as long as she could to retirement at age 65. She is driven to work now but faces significant obstacles that restrict the likelihood of her maintaining regular part-time employment at a rate of about $25,000 per year into the future. Assessing this loss as best as possible considering both positive and negative contingencies, and taking into account the discount factor without expert assistance, an award of $1,400,000 for loss of future earning capacity is appropriate here.

Court Of Appeal Orders New Trial After Plaintiff’s Claim For PTSD Is Dismissed At Trial

In Tambosso v. Holmes, the Plaintiff was injured in two motor vehicle collisions, and sought non-pecuniary damages for pain and suffering for physical and psychological injuries. As a result of one of the accidents, the Plaintiff alleged to have suffered from post-traumatic stress disorder (PTSD), a major depressive disorder, and a mild traumatic brain injury.


The trial lasted for 33 days. The trial judge did not accept the evidence of the Plaintiff, particularly with respect to the Plaintiff’s claim for PTSD. The total amount of the judgement was less than the amounts of money previously advanced by ICBC to the Plaintiff. As a result, the Plaintiff’s claim was dismissed.


Counsel for the Plaintiff advanced numerous grounds of appeal, most notably that the trial judge misapprehended the evidence, which included the events of the one accident which the Plaintiff alleged to have suffered PTSD from ; the evidence of the Plaintiff’s family doctor who diagnosed the PTSD; the evidence of a neuropsychologist; and the evidence of numerous lay witnesses who supported the Plaintiff’s claim for PTSD.


In regards to the accident where the Plaintiff alleged to have suffered PTSD from, the Plaintiff alleged that the look on the Defendant’s face, in conjunction with him driving towards her, led her to believe that he was going to kill her. The trial judge did not accept such a scenario occurred, believing it to be a fabrication. As a result, he did not consider other evidence of lay witnesses that corroborated the Plaintiff’s version of events, nor did he consider the evidence of the Plaintiff’s experts, as he was of the belief that such reports were based on the Plaintiff’s version of events, which he found to be false. The Court of Appeal ruled that the trial judge misapprehended the evidence of the Plaintiff in this regard.


Despite the Court of Appeal acknowledging that there were issues with the Plaintiff’s credibility, a new trial was ordered.


[33] The judge misapprehended the evidence of Ms. Tambosso in terms of whether she saw the eyes or look on the defendant’s face, which, in conjunction with him driving towards her, was relied on to establish her claim for PTSD. In finding that her evidence was a complete fabrication, he failed to address the corroborating evidence of Ms. Greenwood, which he appears to have otherwise accepted, and does not address the fact that the corroborating evidence occurs before Mr. Leal approached the Mazda. As noted by Ms. Tambosso’s counsel, the trial judge has established an artificial conflict in the evidence between Ms. Tambosso and Mr. Leal, where none existed.


[47] The trial judge concluded that he could not accept the opinions of Ms. Tambosso’s experts as their opinions were based primarily on her version of events of the 2008 accident, which he found did not happen. He did not consider the evidence of Dr. Lanius or Dr. Rasmussen, whose opinions did not rely solely on her self-reporting, but on the tests that were conducted which included measures of validity (see Loveridge v. British Columbia, 2007 BCCA 425 (CanLII)).


[53] In my view, the trial judge failed to analyze and determine, on the whole of the evidence, whether and to what extent Ms. Tambosso suffered damages as a result of the two accidents. Instead, he focussed on the findings of an event, seconds in the making, rather than the big picture in terms of the change in her post-accident condition, the significance of the change, and whether it was caused, wholly or in part, by the accident. In my view, completely discounting the expert evidence based on a questionable finding of fact, and wholly disregarding the evidence of 15 witnesses who supported the opinions of the experts and Ms. Tambosso’s evidence in terms of her post-accident condition, amounts to an overriding and palpable error.


[55] However, it is also clear, in my view, that the errors by the trial judge are of such import that the only resolution is a new trial. As such, I do not find it necessary to address the remaining grounds of appeal.

Court Hits Plaintiff With Harsh Reduction In Award For Failure To Mitigate

In Mullens v. Toor, the Plaintiff was injured in a motor vehicle collision, and consequently brought an ICBC claim for non-pecuniary damages, income loss, diminished earning capacity, and the cost of future care. The Plaintiff alleged to have suffered from physical and psychological injuries, and an inability to return to her pre-accident work status.


At trial, a major issue for the Court to consider was whether or not the Plaintiff had properly mitigated her damages, both in terms of her treatments, and her return to work.


In the context of an ICBC injury claim, mitigation is a legal obligation of a claimant to take active, reasonable steps in the recovery process to mitigate (lessen or reduce) their damages and losses. Not properly mitigating damages can sometimes result in a reduction in the judgment awarded by the Court. In order for ICBC’S lawyer to succeed in a failure to mitigate argument, it would need to be proven that the claimant acted unreasonably in not following doctor’s orders, and it would also need to proven to what extent, if any, that the claimant’s injuries would have been reduced had he or she properly mitigated their damages. A failure to follow the advice of treatment providers is a common allegation made by ICBC’S lawyer when advancing a failure to mitigate argument.


In the case at bar, the Court was of the opinion that the Plaintiff had failed to properly mitigate her damages by not making more sincere efforts to return to work. As well, the Court found that the Plaintiff did not properly mitigate her damages with respect to her psychological injuries, by not seeking psychiatric treatment, and by not taking anti-depressant medication recommended by her doctor.


In an unusually harsh reduction by the Court, the Plaintiff was hit with a 50% reduction in the damages awarded to her as a result of a failure to mitigate. The Court’s ruling is an important reminder to those injured in motor vehicle accidents that they should take active, reasonable steps in their recovery process, and that they should follow the advice of their medical practitioners, or else they could face a reduction in their Court award.


[108] With respect to the plaintiff’s failure to return to work, I find that she ought to have at least attempted to return to work in early 2013. She had by then reluctantly accepted her doctor’s advice to utilize anti-depressant medication and was feeling better. I accept the evidence of Dr. Robertson that she could probably have returned to work at the bank, possibly with some limitations, in early 2013. She had a very supportive employer who thought very highly of her, and who was aware of its duty to accommodate her and was prepared to do so. It is reasonable to conclude that had she made the attempt, there was a better than even chance that she would have been successful. Success could have been complete, in the sense that she could have resumed her former career path, or partial, in the sense that she might have been further delayed or continued effects of the accident injuries could have continued to limit her work capacity and her career.


[116] She has been unreasonably resistant and reluctant to accepting that her psychological condition requires medical treatment, including the use of anti-depressant medication, and psychiatric treatment. She was resistant to the early advice of Dr. Chu about anti-depressant medication in August 2012. She resisted the advice of Dr. Hanson until finally relenting in December 2012 only when he insisted. She testified that she was concerned that a diagnosis of depression and taking anti-depressant medications could have some negative consequences, such as for insurance. She did not give much detail about this. This could justify some degree of reluctance but no more. Embarrassment about accepting treatment for a mental injury is not a valid excuse.


[121] In sum, the plaintiff ought reasonably have begun use of anti-depressant medication earlier than she did initially. She could have resumed use of Pristiq or other suitable anti-depressant medication by July 2015 when she stopped breastfeeding, if not earlier. She ought to have been treated by a psychiatrist. Better engagement with medical and psychiatric treatment would have also increased the chances of a successful attempt to return to work which could have been attempted in early 2013 and again in 2015, and 2016.