IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Burton v. Insurance Corporation of British Columbia,

 

2011 BCSC 653

Date: 20110519

Docket: S12305

Registry: Duncan

Between:

Connie Burton

Plaintiff

And:

Insurance Corporation of British Columbia

Defendant

Before: The Honourable Mr. Justice Macaulay

Reasons for Judgment

Counsel for the Plaintiff:

A.G. LaCroix

Counsel for the Defendant:

G. Ridgway, Q.C.

Place and Date of Trial:

Duncan, B.C.
April 27 and 29, 2011

Place and Date of Judgment:

Duncan, B.C.

May 19, 2011


 

[1]             The plaintiff, Connie Burton, sues the defendant, Insurance Corporation of British Columbia (“ICBC”), pursuant to s. 24 of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 (the “Act”), as a nominal defendant, arising out of an alleged hit and run accident that occurred in Duncan, B.C., on December 1, 2008. Mrs. Burton had stopped at a stop sign waiting to turn right and join southbound traffic on the Trans Canada Highway (“TCH”) when an unidentified vehicle hit the Burton vehicle from behind and, shortly after, left the scene.

[2]             At issue under s. 24(1) of the Act is whether Mrs. Burton made “all reasonable efforts to ascertain the identity of the unknown owner and driver” and that the identity of such persons is “not ascertainable”. Also at issue, if Mrs. Burton satisfies the test in s. 24(1), is quantum of damages.

[3]             The only two witnesses at trial were Mrs. Burton and her husband who had been a little ahead of Mrs. Burton in a separate vehicle. Mr. Burton became aware of the collision almost immediately after it occurred and returned to the area in time to make some observations of the unidentified vehicle.

CREDIBILITY

[4]             ICBC challenges the credibility and reliability of Mrs. Burton. Much of the challenge is based on:  alleged inconsistencies between her evidence on examination for discovery and at trial; her alleged failure to disclose relevant information about the behaviour of the driver of the unidentified vehicle to the police or ICBC; and finally, the content of her statement to her then family doctor after she sought medical treatment for her injured shoulder following an incident at work. In spite of, and having considered, the challenges, I find Mrs. Burton to be credible. Her husband also corroborated important parts of her evidence.

THE ACCIDENT

[5]             Mr. and Mrs. Burton, along with their then eight year old son, were moving to Lake Cowichan on the day of the accident. Late in the day, Mr. Burton and his son, followed by Mrs. Burton who was alone in her own vehicle, returned a rental van to a commercial site just off the TCH immediately south of Duncan.

[6]             Before the drop-off of the van, both vehicles travelled east on Cowichan Way to a stop sign at the TCH. Based on Mr. Burton’s estimate, the stop sign was about 200 yards before the commercial premises. After turning right on to the TCH, there are two lanes for southbound traffic that cross a bridge at about halfway to Boyes Road where one turns right to go to the commercial premises.

[7]             Mrs. Burton was following some distance behind her husband’s vehicle as she approached the stop sign at about 6:00 p.m. It was dark out and raining. There was no street lighting in the immediate area, although there would have been some ambient light from the highway and businesses in the area including from the other side of the TCH which is four lanes in width.

[8]             The closest business was a restaurant located to Mrs. Burton’s left when she stopped. Only the rear of the building faced towards Cowichan Way. There were no windows on that side and occupants of the restaurant would not have had any direct view of the accident scene. At most, someone at the front of the restaurant would have been able to see the stop sign but not anything beyond the front of a car stopped at the site.

[9]             To Mrs. Burton’s right was an undeveloped treed area running alongside the Cowichan River and separating the river from Cowichan Way. There were no buildings between Cowichan Way and the river.

[10]         According to Mrs. Burton, she had not noticed any vehicle in her rear view mirror as she came to a stop and signaled a right turn. She recalls a big jolt and going forward into the steering wheel. There was some damage to the rear bumper of the Burton vehicle. According to both Mr. and Mrs. Burton, the rear trunk did not close properly afterwards and the driver’s seat bolts were sheared off. There is no independent corroboration of the latter areas of damage although ICBC had an opportunity to inspect the vehicle.

[11]         Mrs. Burton immediately speed dialed her husband on her cell phone and told him that she had been in an accident. While she was talking to her husband, the driver behind her got out of his vehicle and immediately began banging on the windows of the Burton vehicle as he approached the driver’s side door. The individual began opening her door and was yelling and swearing at her throughout. According to Mrs. Burton, he yelled: “Move the car off the road, let’s get this over and done with bitch.”

[12]         Again, according to Mrs. Burton, her husband told her to hang up and call 911. Mrs. Burton did so and immediately spoke to a dispatcher. She then told the driver that her husband was on the way and that she was speaking to the police.

[13]         The driver slammed Mrs. Burton’s door, returned to his vehicle, backed away and then passed by on her right side, turned south on the TCH and disappeared from her view. By about that point, Mrs. Burton observed her husband and son running towards her on the bridge. Only one other vehicle had approached from her rear and passed by while she was engaged with the driver.

[14]         Mr. Burton testified that, after speaking to his wife, he and his son ran along the side of the TCH and across the bridge towards her. At about the halfway point, he saw a white Reliant K car backing off his wife’s car. The driver then proceeded around the right side of the Burton vehicle and turned onto the TCH towards Mr. Burton. Mr. Burton attempted to take a cell phone picture of the license plate of the vehicle but was unsuccessful as another vehicle was in the way. After the driver passed Mr. Burton southbound, he turned right at Boyes Road and then disappeared from sight. As Mr. Burton approached his wife’s vehicle, he observed that the front half of her vehicle was in the southbound slow lane. There was no significant attempt to challenge this evidence on cross-examination.

[15]         Mrs. Burton described herself as crying and frightened by the sequence of events. She was afraid that the driver was going to pull her out of her car. She barely looked at him and did not ask him to produce any vehicle or personal identification. Mr. Burton testified that she appeared “freaked out”, afraid, motionless and crying when he arrived at her side. 

[16]         Mrs. Burton did not record the license plate number of the vehicle that collided with hers. She could not see the front license plate because of the point of impact. Nor did she observe the rear license plate that was likely at least momentarily visible as the vehicle passed on her right and turned onto the TCH.

[17]         In cross-examination, counsel for ICBC confronted Mrs. Burton with her denial on examination for discovery that the other driver opened her car door. According to her, she forgot. It is apparent that she gave a statement to ICBC the day after the accident stating that the driver opened her door and told her to get her car off the road. In addition, Mr. Burton also testified that, while he was speaking to his wife on the phone just before he told her to hang up and call the police, he overheard a voice in the background saying words like: “Let’s get this done bitch. Get out of the car bitch. Let’s get this done.” Mr. Burton also overheard the banging noises that preceded the conversation.

[18]         I am satisfied that Mrs. Burton’s account of the events immediately surrounding the accident is truthful and, in particular, that her description of the conduct of the driver and its effect on her are reliable.

[19]         I accept that Mrs. Burton was extremely frightened as a result of the conduct of the driver and that she did not want to do anything that might place herself further at risk. Added to the initial shock of being rear-ended and feeling injured, I am not surprised that Mrs. Burton did not attempt to obtain direct information from the driver respecting his identity or that she failed to make observations of his license plate as he left the scene. 

[20]         Before the accident, Mrs. Burton was healthy except for a chronic kidney condition. She was aware of pain immediately after the impact in her left shoulder and down her back on the right side. Although police and ambulance personnel attended and spoke to Mrs. Burton, she elected to have her husband drive her to the hospital. X-rays taken at the hospital confirmed that there were no bone fractures.

POST-ACCIDENT STEPS

[21]         According to Mr. and Mrs. Burton, they informed the police of the events and were advised that the police would look for the driver. It is unlikely that the police tried to find the vehicle because there is a notation in the police file to the effect that the officer concluded the investigation after filling out an accident report.

[22]         During the weeks following the accident, the Burtons and many of their friends looked throughout the Duncan area for a vehicle with front-end damage of the type and description provided by Mr. Burton. One of the friends is a Tow Truck operator. He reported observing a similar car parked on Gibbons Road. Mr. Burton went to look at the vehicle. It was parked on private property with the front end, and any possible damage, hidden from view because it was parked in a snow bank. The vehicle was the same make and matched the general description but did not have a rear license plate.

[23]         Mrs. Burton telephoned the police and told the receptionist about the vehicle. Mrs. Burton was informed that the information would be passed on to the investigating officer although she never heard anything further from the police. On a later occasion, Mrs. Burton observed another vehicle matching the general description parked in a local parking lot. She did not approach or report that vehicle to anyone other than her husband because the driver was a woman rather than a man.

SECTION 24(1):  POSITIONS OF THE PARTIES

[24]         Counsel for Mrs. Burton submits that her lack of action to identify the vehicle or driver at the scene was reasonable having regard to the threatening and intimidating circumstances. Further, he contends that there was nothing to be gained by taking additional steps after the accident such as posting notices at the site or the restaurant, and advertising for witnesses to come forward in a local paper.

[25]         Counsel for ICBC contends first that I should not believe Mrs. Burton but I have rejected that contention. He also contends that Mrs. Burton reasonably ought to have taken steps at the scene to identify the driver and the vehicle. He says that her failure to do so was a matter of choice rather than distraction brought on by fear. Finally, he submits that the later actions to locate and identify the vehicle were also insufficient.

SECTION 24(1):  ANALYSIS AND CONCLUSION

[26]         Section 24 and its predecessor have been judicially considered and applied many times. While the fact patterns in the cases are understandably divergent, there is little, if any, controversy in the law. In Leggett v. Insurance Corp. of British Columbia (1992), 72 B.C.L.R. (2d) 201 (B.C.C.A.), the Court of Appeal, referring to the predecessor section, set the bar fairly high for plaintiffs, stating at para. 9:

In my view the overall purpose of the section is to limit the exposure of [ICBC] to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be in their own interests, and which, by virtue of the section, become the interests of the corporation.

I observe that the predecessor section referred to the names of the owner and driver not being ascertainable but did not expressly include the qualification now found in s. 24(1)(a) that the efforts to ascertain identity be reasonable.

[27]         Also significant is the decision of the Court of Appeal in Smoluk v. Insurance Corporation of British Columbia (1993), 83 B.C.L.R. (2d) 328 (B.C.C.A.). The court limited Leggett on the basis that the plaintiff in that case had decided not to pursue his rights. Smoluk, on the other hand, was prevented from obtaining information because the other driver fled the scene before she could do more than attempt to record the license plate number. Unfortunately, in her haste, she got the number wrong. The court also concluded that, once the error in the number was apparent, other steps such as advertising immediately after the event or setting up surveillance at the scene of the accident to look for the driver would have been highly speculative investigative steps and the plaintiff was not required to take them.

[28]         In McMahon v. Insurance Corp. of British Columbia (1998), 14 C.C.L.I. (3d) 7 (B.C.S.C.) at para. 28, Quijano J. accepted earlier authority that a reading of the above two decisions suggests that “‘all reasonable steps’ must be assessed in the context of each individual case.” In a recent decision, Goncalves v. John Doe, 2010 BCSC 1241, Harris J. reviewed several authorities interpreting “reasonable efforts.” I distill the following additional descriptors from the cases that he reviews, at paras. 8‑11 inclusive:

·                 Does not mean all possible efforts;

·                 Means logical, sensible and fair rather than absurd, whimsical or unwarranted;

·                 Not required to take action that is highly unlikely to produce any result; and,

·                 Includes a subjective aspect having regard to the plaintiff’s physical and mental condition at the time of and in the circumstances of the collision.

I do not need to refer expressly to many of the other cases referred to by counsel. With one exception, they represent applications of one or more of the propositions set out above in the facts of the particular case.

[29]         The exception to which I refer above is Breton v. Insurance Corp. of British Columbia (1990), 47 C.C.L.I. 221 (B.C.S.C.), a decision that predates Leggett. As I understand the latter, the Court of Appeal rejected the more narrow interpretation of the predecessor section found in Breton: Leggett at para. 6.

[30]         In addition to the facts already set out in my reasons, I accept that there was no pedestrian traffic in the immediate area at the time of the collision and, further, that many of the vehicles travelling in either direction on the TCH would be travelling through Duncan and unlikely to be within reach of advertising. Further, I consider it unlikely that the drivers passing closest to the accident site would even be aware that a collision had occurred on Cowichan Way, given the adverse weather and lighting conditions along with their limited vantage point as they passed by. As I have already set out, only one driver came along Cowichan Way after the collision before the driver responsible for the collision disappeared but that driver never stopped to offer assistance.

[31]         I am persuaded that the fear and anxiety that Mrs. Burton felt in the circumstances provides a reasonable justification for her failure to ask the driver to properly identify himself or to attempt to identify the license plate. As a woman alone in a car at night, faced with aggressive threatening behaviour, her first concern was legitimately for her safety and to avoid confronting the driver.

[32]         I accept that Mrs. Burton never chose, as did the plaintiff in Leggett, not to pursue her obligation. Instead, after reporting the matter to the police, she and her husband, along with friends, looked for the other vehicle. When they thought they might have found it, Mrs. Burton appropriately passed the information on to the police. At that point, it was reasonable, given the location of the vehicle on private property and the conduct of the driver at the time of the collision, that the police, rather than Mrs. Burton, take the investigative steps necessary to confirm whether the vehicle parked on Gibbons Road was involved. She is not responsible for their failure to do so.

[33]         Also, Mrs. Burton’s obligation did not extend, in the circumstances, to doing more. I am not persuaded that postings or advertising for witnesses had any realistic prospect of eliciting information that would identify the other vehicle or the driver.

[34]         I am satisfied that Mrs. Burton has satisfied the obligations that s. 24(1) places on her. She is entitled to judgment against ICBC as the nominal defendant.

DAMAGES

[35]         This leaves the assessment of damages. In this regard, I make the following additional findings of fact. In addition to pain and suffering, as well as decreased range of motion, associated with the soft tissue injuries to the left shoulder and right back, Mrs. Burton has also had significant referred headaches as well as tingling in the arm and fingers. After the acute phase, her recovery progressed over the next few months such that she was able to commence employment as a front desk worker at a local lodge.

[36]         In early March 2009, Mrs. Burton helped change a bed at work. This reactivated her neck pain as well as the tingling. Counsel for ICBC suggested that this was a new injury and unrelated to the accident because the family doctor recorded it as a “recent reinjury of neck” but I am satisfied that it was a flare-up of the accident-related injury brought on by changing the bed, a task that Mrs. Burton has not yet been able to do at home without exacerbating her symptoms.

[37]         According to Mrs. Burton, she is still unable to do many of the tasks and activities that she enjoyed before the accident. For example, her son now does some of the cooking if Mr. Burton is away, rather than her. She has difficulty pulling relatively small weights out of the oven. She can no longer participate actively in activities like hunting, swimming, hiking, playing baseball with her son, walking or lifting the family dogs.

[38]         If Mrs. Burton tries to do too much, her shoulder hurts and she gets headaches. Mr. Burton described Mrs. Burton’s current condition as well. He testified that she still cannot swim, cast a fishing rod, ride on bumpy gravel roads or go hunting with him and their son as she used to. He estimates that she lasts about five minutes doing housework before she has to stop.

[39]         According to Dr. Ibrahim, Mrs. Burton’s family doctor since May 2010, based on subjective complaints and objective examination, she continues to have significant limitation in the range of movement in the left shoulder. Mrs. Burton is left-handed and, in the doctor’s view, she has sustained “significant loss of function, which is impacting on her quality of life.”

[40]         Dr. Ibrahim was concerned about the prognosis and opined that Mrs. Burton’s symptoms “are likely to stay the same or get worse over time.” He referred Mrs. Burton to a specialist. As I do not have any evidence from the specialist, I assume that the latter aspect of Dr. Ibrahim’s prognosis was never confirmed. I also observe that Dr. Ibrahim has not identified any related arthritic changes that might be expected to worsen.

[41]         I conclude that Mrs. Burton sustained a moderate soft tissue injury that continues to cause significant discomfort, based on her activity level, two and one-half years after the accident. I further conclude that she will continue to improve if she undergoes a regime of massage therapy as her doctor has recommended. Massage therapy treatments cost about $45 per session and, to this point, Mrs. Burton has not been able to afford them.

[42]         Mrs. Burton had planned to continue working at the Lodge but her employer released her when she was unable to assist with making beds. If she had continued to work at the Lodge, she anticipated that she would have worked full-time once the Lodge got busier in the spring. Mrs. Burton earned a training wage of $6 per hour while she worked at the Lodge but understood that would have been gradually increased to $10. In August 2009, Mrs. Burton started other work elsewhere and, as a result, her claim for income loss is limited to the lost opportunity to work at the Lodge.

POSITIONS OF THE PARTIES

[43]         Counsel submits that $40,000 is a fair and appropriate award for pain and suffering. He relies on three cases as demonstrating an overall range of $30,000 to $40,000: Reddy v. Stobbe, 1991 CarswellBC 1548; Jackson v. Gow, 2001 BCSC 54; and Krause v. Gill, 2006 BCSC 1459. The first two resulted in awards of $40,000 and the third resulted in an award of $30,000.

[44]         In addition, Mrs. Burton seeks an award of $6,500. This represents a gross wage loss assuming full-time employment at $8 per hour from April 1 to July 31, 2009, totaling $7,600 before any reduction for contingencies. Finally, Mrs. Burton seeks an award to cover the anticipated cost of massage therapy treatments.

[45]         Counsel for ICBC did not rely on any authorities but submitted that the plaintiff’s injuries were modest and that she was fully recovered within a few months of the accident. He suggests that I should be cautious in accepting her description of injuries having regard to the lack of objective medical evidence. Counsel submits that any award should be less than $5,000.

DAMAGES:  ANALYSIS AND CONCLUSIONS

[46]         As earlier set out, I found Mrs. Burton to be a reliable witness as was her husband. I do not accept that she exaggerated her complaints. In my view, her injuries and recovery are at least as serious as those described in Krause, one of the cases referred to by her counsel.

[47]         On the other hand, in Reddy, the plaintiff‘s initial injuries were more extensive than in the present case and progressed to a debilitating fibrositis syndrome that exacerbated a similar condition caused by earlier accidents. In Jackson, the plaintiff continued to have symptoms from soft tissue injuries almost three years after her accident in spite of extensive physiotherapy treatments. The trial judge found that the injuries were significant enough to necessitate a seven month leave of absence from work. As well, in Krause, as set out at para. 59, the plaintiff sustained moderate soft tissue injuries, as well as significant anxiety, for an acute period of six months, ongoing neck and back pain for another year with some minor ongoing pain at the time of trial, three years post-accident.

[48]         A fair and just award is within the broad range suggested by counsel for Mrs. Burton, but not near the top. I assess Mrs. Burton’s award for pain and suffering at $35,000. In addition, I accept the submission on her behalf respecting her loss of opportunity to earn income and assess the gross income loss at $6,500. If counsel cannot agree on the actual award net of income tax, they may speak to the matter. Mrs. Burton is also entitled to court order interest on the net income loss award. Finally, I award a further $500 to cover the anticipated cost of massage therapy treatments. Judgment is granted against ICBC as the nominal defendant in accord with the above.

[49]         If there are any special considerations respecting costs, counsel may speak to the matter or agree to another form of costs order. Otherwise, Mrs. Burton is entitled to costs on Scale B.

                 “M.D. Macaulay, J.”             

The Honourable Mr. Justice Macaulay