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In the Supreme Court of British Columbia, there is a mechanism to encourage early settlement of all actions, including those involving motor vehicle collisions and ICBC injury claims. That mechanism is the Offer to Settle, which is a special type of offer that is governed by Rule 9-1 of the Supreme Court Civil Rules. Under the old Rules of Court, the section was Rule 37, Rule 37A or Rule 37B, as it changed over time.

Rule 9-1 essentially says that there are consequences in the form of Court Costs for a party should they no accept a reasonable offer and force unnecessary steps in a court action, such as proceeding to trial and receiving a judgment that is less than what the Offer to Settle was for. That is what happened in a recent case ( link ).

The summary of the result at trial in the case was that the Court awarded the plaintiff $433,103.63, but the defendant, prior to the trial, had offered to settle for $493,234 and $595,000. The amount awarded by the judge after trial, of course, was less than the amounts the defendant was willing to offer.

Each stage in a court proceeding is allocated a fixed number of units, or a range of possible units. Each unit, for cases of ordinary difficulty is worth $110 plus H.S.T. These units are what is referred to as "Court Costs". Court Costs are intended to offset some of the expense of proceeding through a court action. However, if a party does not accept a reasonable offer, and forces unnecessary steps to be taken, Court Costs can act as a penalty.

The purposes of Court Costs have been said to be:
(1) to indemnify a succesful litigant
(2) to deter frivolous actions or defences
(3) to encourage conduct that reduces the duration and expense of litigation and to discourage conduct that has the opposite effect
(4) to encourage litigants to settle whenever possible, thus freeing up judicial resources for other cases
(5) to require litigants to make a careful assessment of the strength or lack thereof of their cases at the commencement and throughout the course of litigation,
(6) and to discourage the continuance of doubtful cases or defences.

The old Rule 37B used to have mandatory consequences in the event that a formal offer was not accepted and the result at trial was less favourable than the offer. Rule 9-1 now gives much the Court broad discretion to determine the consequences of a succesful offer to settle.

The possibilities are broad ranging from awards of double costs to no costs to costs after a certain date to penalties of double costs.

The discretion afforded to the Court in deciding what result in terms of Costs Consequences will be appropriate in the circumstances will likely lead to better equities and justice, but it also breeds uncertainty. The Vancouver personal injury lawyers at Becker Lavin & Wessler can guide you through this confusing area as well as all other aspects of your ICBC injury claim.

Becker Lavin & Wessler wishes a happy and prosperous Year of the Dragon to everyone celebrating New Year.

With the recent snowfall in the Lower Mainland, there will be instances of black ice on the roads. Whether or not a driver is negligent when it comes to losing control of a vehicle when there is black ice on the roads is a question that must be answered with all of the circumstances kept in mind. In a recently reported case ( link ), the driver was found not to be negligent.

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

The BC Court of Appeal allowed the appeal of a left-turning Plaintiff that was found at trial 100% responsible for a motor vehicle collision ( link )

The case involved the Defendant (Merrison) passing two or three cars and a truck on the right to make a right turn at the intersection, where the Plaintiff, (Smeltzer), who was travelling in the opposite direction, was making a left turn at the intersection.

[23] This accident happened because neither driver saw the other before they collided. That was because both proceeded in a manner that contravened the provisions of the Act: Ms. Merrison breached s. 158 and Ms. Smeltzer breached s. 166. Ms. Merrison could not see Ms. Smeltzer’s vehicle while she was wrongfully passing the cars and the truck ahead of her on the right and she was not looking where she should have been; Ms. Smeltzer could not see Ms. Merrison’s car while her vision was obstructed and she did not take steps to ascertain her turn could be safely made. I do not consider it is possible to establish different degrees of fault in the circumstances of this case such that in accordance with s. 1 of the Negligence Act, R.S.B.C. 1996, c. 333, liability is to be apportioned equally.

Labels: Court of Appeal, left turn, passing on the right

In the published case of Parker v. Lemmon 2012 BSCS 27 ( link ) a 43 year old woman was injured in two motor vehicle collisions, the first being less serious than the second.

[9] The injuries she asserts were caused by the accidents are pain in the area of her cervical spine, right shoulder, and low back; right arm numbness and tingling; headaches; and left shoulder pain.

As both collisions resulted in the same overlapping injuries, the case proceeded on the basis that the Court need not consider what percentage each accident contributed to her injuries.

[51] The damages of the plaintiff are assessed as follows:

(1) Non-pecuniary damages in the amount of $45,000;

(2) Loss of Capital Asset in the amount of $25,000;

(3) Loss of Housekeeping Capacity in the amount of $1,500;

(4) Cost of Future Care in the amount of $1,500; and

(5) Special Damages calculated as above noted.

News-Medical.net published an article on December 20,2011 ( link )reviewing a special article in Spine discussing new ideas for the treatment of whiplash to reduce the chances of the development of chronic pain and disability. Severe pain, the presence of headache, extremely limited neck movement and psychological stressors could have an impact on the long term outcome of recovery.

While this article seems to suggest that new approaches are going to be examined going forward, your family doctor is the person best suited to assist you with your individual symptoms should you be injured in a car accident, pedestrian accident, or cycling accident with another motor vehicle. What is obvious is that the sooner you tell your doctor about your symptoms, the sooner that they can start to help and guide you to the correct treatments. From a legal perspective, early reporting to your doctor assists in proving that your injuries and symptoms are a result of the collision.

The medical journal Spine published an article in their December 15, 2011 journal studying the effectiveness of acupuncture in the treatment of subacute and chronic whiplash. The conclusion ( link ), was that "Real electroacupuncture was associated with a significant reduction in pain intensity over at least 6 months. This reduction was probably not clinically significant. There was no improvement in disability or quality of life."

Whiplash is a common injury suffered by people involved in motor vehicle accidents, most often in rear-end collisions. In our next post, we will discuss an article suggesting that early management of whiplash injuries can reduce chronic neck pain and disability.

If you have suffered whiplash, whiplash-associated disorders, or soft tissue injuries to your neck or back in a car accident, the Vancouver auto injury lawyers at Becker Lavin & Wessler can help. We can guide you to the approiate medical resources to get treatment or therapy, to give you the best chance for recovery. We can guide you through the claims process and make sure that you are accessing the benefits that are available to you to receive and pay for treatment. Give us a call at 604-689-3883 or visit our website at www.BLWlawyers.com