Coquitlam ICBC Lawyer: ICBC’s drive-by wastes valuable Court time & puts plaintiff through…
ICBC’s game of chicken reprimanded by the BC Supreme Court.
Again and again, we see ICBC taking issues to trial that ought not to be issues. In doing so, it seems they are seeking to attack, or get the upper hand on, plaintiff’s lawyers. However, ICBC shows little-to-no concern for the people it truly hurts: the unfortunate injured.
Injured claimants (or plaintiffs) seem to be the innocent bystanders/victims of ICBC’s drive-by shooting-like theories on taking everything to and disputing everything at trial.
In the recent case of Rhodes v Alaba, 2021 BCSC 787, a rear-end motor vehicle accident case, ICBC pressed on blaming the injured claimant (plaintiff) for being rear-ended. ICBC pushed this theory so much so that ICBC only admitted liability midway through trial. More so, the injured claimant (or plaintiff) in this matter was suffering from Crohn’s Disease which is an incurable and debilitating gastrointestinal disease. The injured claimant’s expert - who had treated him for Crohn’s since 2002 - testified that the “trauma of the accident itself, that is, the trauma or stress for Mr. Rhodes from being in the accident, more likely than not played a significant role in the flare of the Crohn's disease”: at para. 9. The Court ultimately agreed writing at para. 14 as follows: “[although] Crohn's disease, once in remission, has a good prospect of returning within five years, [it] is not enough to bar all compensation to Mr. Rhodes for the accident reactivating his Crohn's disease in the dramatic and painful manner in which it recurred…In the result, the award of non-pecuniary damages should include compensation, at least to some extent, for the pain, surgeries and indignities Mr. Rhodes endured in 2015 and to a lesser extent in 2016.”
In short, the subject collision resulted in the injured claimant (or plaintiff) to suffer a flare-up of his Crohn’s disease which was much more extreme and much more painful due to the Accident. ICBC, with no empathy/sympathy, prolonged his trial disputing liability. In other words, ICBC, instead of taking this matter to trial based on the merits - did the Accident cause the Crohn’s to flare up or not - chose to put the injured claimant (or plaintiff) through a longer trial disputing liability in a rear-end collision.
The Court dismissed ICBC’s futile efforts to pepper the injured claimant (or plaintiff) with bullet-like falsehoods and awarded him $160,000 for his pain and suffering; which, as you can understand, was clearly well deserved.
In this case, Justice Macintosh also covered the law on “original position” as follows:
[11] In assessing Mr. Rhodes’ non-pecuniary damages, this Court's decision in Vintila v. Kirkwood, 2016 BCSC 930 [Vintila], provides guidance. I respectfully adopt Justice Bernard’s discussion of the legal principles, and his legal conclusions, at paras. 33-38:
[33] The principal matter in dispute is the plaintiff’s “original position”: that is, Ms. Vintila’s state/condition at the time of the accident. The issue is central because it is well-established in our jurisprudence that a tortfeasor is obliged only to return an injured plaintiff to her original position and not to one more favourable. In other words, a defendant is not liable for the debilitating effects of a pre-existing condition which the plaintiff would, in any event, have experienced.
[34] If a plaintiff has a quiescent pre-existing weakness or latent susceptibility that has been triggered by the defendant’s negligence, then the original position of the plaintiff is a pain-free/asymptomatic state and the defendant is liable, in damages, for all the plaintiff’s injuries/symptoms arising from his negligence even if they are unexpectedly severe. This is known, in our jurisprudence, as the “thin skull” rule.
[35] If, however, a pre-existing condition is already manifest and presently disabling at the time of the negligent act, then the defendant is not liable for any debilitating effects of that pre-existing condition that the plaintiff would, in any event, have experienced. In other words, the plaintiff’s pre-existing condition is inherent to her original position; thus, the injuries related to the pre-existing condition are divisible and the defendant is only responsible for any aggravation of symptoms. This is referred to as the “crumbling skull” rule.
[36] These legal principles are found in the seminal case of Athey v.
Leonati, 1996, Can Lii 183 (SCC):
34 The respondents argued that the plaintiff was predisposed to disc herniation and that this is therefore a case where the "crumbling skull" rule applies. The “crumbling skull” doctrine is an awkward label for a fairly simple idea. It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff's injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.
35 The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, supra; Malec v. J. C. Hutton Proprietary Ltd., supra; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.
36 The “crumbling skull” argument is the respondents’ strongest submission, but in my view it does not succeed on the facts as found by the trial judge. There was no finding of any measurable risk that the disc herniation would have occurred without the accident, and there was therefore no basis to reduce the award to take into account any such risk
[37] The “crumbling skull” rule was discussed more recently, in Sangha v. Chen, 2013 BCCA 287:
29 The correct approach to pre-existing conditions is discussed in Athey v. Leonati, 1996 CanLII 183 (SCC), [1996] 3 S.C.R. 458, under the rubric of “crumbling skull” . . .
30 I also refer to Blackwater v. Plint, 2005 SCC 58 (CanLII), [2005] 3 S.C.R., 2005 SCC 58.:
[78] It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether "but for" the defendant's acts, the plaintiff's damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant's act is a cause of the plaintiff's damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …
[38] In Krause v. Gill et al, 2006 BCSC 1459, the court found that the “crumbling skull” rule does not require that the pre-existing condition be symptomatic immediately before the tortious act in question:
[42] As I understand Athey, supra, and many of the cases that have considered it, the distinction between “thin skull” and “crumbling skull” does not depend on whether the plaintiff’s pre-existing condition was active immediately before the second source or cause of injury. A weakness inherent in a plaintiff, which might realistically cause or contribute to a loss, regardless of the negligence of a defendant, is relevant in the assessment of damages: see T.W.N.A. v. Canada (2003), 22 B.C.L.R. (4th) 1 (C.A.) at para. 48, 2003 BCCA 670 (CanLII); York v. Johnston (1997), 1997 CanLII 4043 (BC CA), 37 B.C.L.R. (3d) 235 (C.A.), McKelvie v. Ng (2001), 90 B.C.L.R. (3d) 62, 2001 BCCA 384 (CanLII).
[43] As set out in Athey, supra, and the other cases, the main objective is to reflect the difference between the plaintiff’s original position and his injured position. If there is a measurable risk that a pre-existing condition would have detrimentally affected him in the future, regardless of the defendant’s negligence, then this contingency should be accounted for in reducing the amount of damages.
[Emphasis added.]