IN THE SUPREME COURT OF BRITISH COLUMBIA
Singh v. McHatten,
2011 BCSC 1093
McHatten, Mercado Capital Corporation, Jarnail Singh Rai
and C. Keay Investments Ltd. DBA Ocean Trailer
Before: The Honourable Madam Justice Loo
Reasons for Judgment
Counsel for the Plaintiff:
Counsel for the Defendants:
Place and Date of Hearing:
August 4, 2011
Place and Date of Judgment:
August 11, 2011
 The defendants bring this Rule 9-7 summary trial for an order dismissing the plaintiff’s claim for damages arising out of a motor vehicle accident that occurred on July 29, 2006. The plaintiff brought an action and obtained a judgment in the Provincial Court of British Columbia (Small Claims Division) relating to the same accident and the defendants contend the plaintiff is therefore precluded from claiming again in relation to the same accident on the basis of res judicata.
 The defendants claim that cause of action estoppel applies or alternatively issue estoppel, and rely on the oft quoted passage of Vice-Chancellor Wigram in Henderson v. Henderson (1843), 3 Hare 100, 67 E.R. 313, at 114-15:
In trying this question, I believe I state the rule of the Court correctly, when I say that, where a given matter becomes the subject of litigation in, and of adjudication by, a Court of competent jurisdiction, the Court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the Court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time.
 The defendants also rely on the reasons for judgment of Madam Justice Newbury in Cliffs Over Maple Bay (Re), 2011 BCCA 180:
 The policy objectives underlying res judicata generally are well-known and have been discussed at length in the jurisprudence and in the academic context: see for example, Donald J. Lange, Res Judicata in Canada (3rd ed., 2010), chapter 1; Henderson v. Henderson, supra; Hoystead v. Taxation Commissioner  A.C. 155 (J.C.P.C.); Angle v. Minister of National Revenue  2 S.C.R. 248; and Danyluk v. Ainsworth Technologies Ltd. 2001 SCC 44,  2 S.C.R. 460. The authors of Spencer Bower and Turner, The Doctrine of Res Judicata (4th ed., 2009), state:
Two policies support the doctrine of res judicata estoppel: the interest of the community in the termination of disputes and the finality and conclusiveness of judicial decisions; and the interest of an individual in being protected from repeated suits and prosecutions for the same cause. Maugham L.C. said:
The doctrine of estoppel is one founded on considerations of justice and good sense. If an issue has been distinctly raised and decided in an action, in which the parties are represented, it is unjust and unreasonable to permit the same issue to be litigated afresh between the same parties or persons claiming under them.
 Appellate courts in Canada have emphasized that the importance of finality and the principle that a party should not be ‘twice vexed’ (bis vixari) for the same cause, must be balanced against the other “fundamental principle” (see [Hoque v. Montreal Trust Co. of Canada (1997) 162 N.S.R. (2d) 321 (C.A.)] at para. 21) that courts are reluctant to deprive litigants of the right to have their cases decided on the merits: see Toronto (City) v. Canadian Union of Public Employees, Local 79, 2003 SCC 63,  3 S.C.R. 77, at para. 55; Revane v. Homersham 2006 BCCA 8, 53 B.C.L.R. (4th) 76 (C.A.) at paras. 16-7; Lange at 7-8.
 Res judicata takes two forms in modern practice, cause of action estoppel (still sometimes called res judicata) and issue estoppel. Lange summarizes them as follows:
In their simplest definitions, issue estoppel means that a litigant is estopped because the issue has clearly been decided in the previous proceeding, and cause of action estoppel means that a litigant is estopped because the cause has passed into a matter adjudged in the previous proceeding. [At 1.]
The distinction was described in more elaborate terms by Lord Denning, M.R. in Fidelitas Shipping Co., Ltd., v. V/O Exportchleb  2 All E.R. 4 (C.A.):
The law, as I understand it, is this: if one party brings an action against another for a particular cause and judgment is given on it, there is a strict rule of law that he cannot bring another action against the same party for the same cause. Transit in rem judicatam ... But within one cause of action, there may be several issues raised which are necessary for the determination of the whole case. The rule then is that, once an issue has been raised and distinctly determined between the parties, then, as a general rule, neither party can be allowed to fight that issue all over again. The same issue cannot be raised by either of them again in the same or subsequent proceedings except in special circumstances ... And within one issue, there may be several points available which go to aid one party or the other in his efforts to secure a determination of the issue in his favour. The rule then is that each party must use reasonable diligence to bring forward every point which he thinks would help him. If he omits to raise any particular point, from negligence, inadvertence, or even accident (which would or might have decided the issue in his favour), he may find himself shut out from raising that point again, at any rate in any case where the self-same issue arises in the same or subsequent proceedings. ... But this again is not an inflexible rule. It can be departed from in special circumstances. ... [At 8-9; quoted with apparent approval in Grandview v. Doering, infra.]
 Although grounded in the same basic considerations, each form involves, or has traditionally involved, criteria that have been expressed in slightly different terms. The traditional criteria for cause of action estoppel, confirmed in Canada in [Angle v. Minister of National Revenue,  2 S.C.R. 248] were summarized by Chief Justice Hewak in Bjarnarson v. Manitoba (1987) 38 D.L.R. (4th) 32 (Man. Q.B.) at 34, aff’d. (1987) 45 D.L.R. (4th) 766 (Man. C.A.), as taken from Grandview v. Doering  2 S.C.R. 621:
1. There must be a final decision of a court of competent jurisdiction in the prior action [the requirement of “finality”];
2. The parties to the subsequent litigation must have been parties to or in privy with the parties to the prior action [the requirement of “mutuality”];
3. The cause of action and the prior action must not be separate and distinct; and
4. The basis of the cause of action and the subsequent action was argued or could have been argued in the prior action if the parties had exercised reasonable diligence. [At para. 6; emphasis by Newbury J.]
 Turning then to issue estoppel, I note the three traditional “tests” adopted by the Supreme Court of Canada in Angle, namely:
(1) that the same question has been decided;
(2) that the judicial decision which is said to create the estoppel was final; and,
(3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised, or their privies. ... [At 254; emphasis by Newbury J.]
There is also the well-known formulation of issue estoppel given by Middleton J.A. in McIntosh v. Parent  4 D.L.R. 420 (Ont. C.A.):
When a question is litigated, the judgment of the Court is a final determination as between the parties and their privies. Any right, question, or fact distinctly put in issue and directly determined by a Court of competent jurisdiction as a ground of recovery, or as an answer to a claim set up, cannot be re-tried in a subsequent suit between the same parties or their privies, though for a different cause of action. The right, question, or fact, once determined, must, as between them, be taken to be conclusively established so long as the judgment remains. [At 422; emphasis by Newbury J.]
 The plaintiff respondent contends that the facts of this case are concerned with cause of action estoppel, and that the fourth criteria has not been met and therefore cause of action estoppel does not apply. Further or alternatively, special circumstances exist here for the Court to exercise its discretion and decline to apply the doctrine of res judicata.
 The plaintiff relies on several authorities including Innes v. Bui, 2010 BCCA 322. In that case both parties were driving motor vehicles that collided. ICBC determined that Ms. Bui was solely responsible for the collision. Ms. Bui was dissatisfied with the decision and brought an action in Small Claims against ICBC for recovery of her increased insurance premiums. Ms. Bui was persuaded that Ms. Innes was the proper defendant in the place of ICBC. However, counsel for ICBC defended Ms. Innes in the Small Claims action. At the same time Ms. Innes commenced an action in Supreme Court for personal injuries. The judge in Small Claims after hearing the evidence of both parties said that he could not choose between them and dismissed the claim.
 In the Supreme Court action Ms. Bui successfully argued that Ms. Innes’ action should be dismissed on the basis of res judicata. Mr. Justice Low for the Court of Appeal in allowing Ms. Innes’ appeal stated:
 In Fournogerakis v. Barlow, 2008 BCCA 223, (2008) 80 B.C.L.R. (4th) 290, Lowry J. A. stated this broad definition of the defence of res judicata:
 Where it applies, res judicata serves as an equitable estoppel. Its purpose is to ensure justice is done, prevent abuse of process, and fulfill the societal interest of finalizing litigation. The court retains a discretion to refuse to apply the principle where in special circumstances a rigid application would frustrate its purpose: Arnold v. National Westminster Bank Plc.,  2 A.C. 93 (H.L.) at 109-111.
 In the Small Claims action, Ms. Innes was the wrong defendant. She certainly was not a necessary defendant. That action was not based in tort. It was either in contract or under statute, or both, and the only issue raised by the pleadings was whether ICBC acted properly or reasonably in administratively assigning responsibility for the collision to Ms. Bui alone. That was an issue only between Ms. Bui and ICBC. Ms. Innes apparently had no say about being substituted as the defendant in place of ICBC. She had no control over the conduct of the action and she had no right of appeal independent of ICBC. To say that the judgment given in the Small Claims action should have the effect of denying Ms. Innes the opportunity to present her own case stretches the equitable defence of res judicata to limits which, in the interests of justice, the defence should not be taken. In that action, Ms. Innes did not have her day in court in any real sense.
 On this basis I question whether it is correct to say that the parties, in reality, were the same in the two actions or that any consideration of privy arises.
 In any event, if all the criteria for res judicata were met, I would think that this is a special circumstances case in which the doctrine should not be applied.
 In British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 79 A.C.W.S. (3d) 304, 50 B.C.L.R. (3d) 1 (C.A.), Mr. Justice Finch (as he then was) stated:
 It must always be remembered that although the three requirements for issue estoppel must be satisfied before it can apply, the fact that they may be satisfied does not automatically give rise to its application. Issue estoppel is an equitable doctrine, and as can be seen from the cases, is closely related to abuse of process. The doctrine of issue estoppel is designed as an implement of justice, and a protection against injustice. It inevitably calls upon the exercise of a judicial discretion to achieve fairness according to the circumstances of each case.
 In Danyluk v. Ainsworth Technologies Inc.,  2 S.C.R. 460, 2001 SCC 44, Mr. Justice Binnie for the Supreme Court of Canada stated:
 The rules governing issue estoppel should not be mechanically applied. The underlying purpose is to balance the public interest in the finality of litigation with the public interest in ensuring that justice is done on the facts of a particular case. (There are corresponding private interests.) The first step is to determine whether the moving party (in this case the respondent) has established the preconditions to the operation of issue estoppel set out by Dickson J. in Angle [v. Minister of National Revenue,  2 S.C.R. 248]. If successful, the court must still determine whether, as a matter of discretion, issue estoppel ought to be applied: British Columbia (Minister of Forests) v. Bugbusters Pest Management Inc. (1998), 50 B.C.L.R. (3d) 1 (C.A.), at para. 32; Schweneke v. Ontario (2000), 47 O.R. (3d) 97 (C.A.), at paras. 38-39; Braithwaite v. Nova Scotia Public Service Long Term Disability Plan Trust Fund (1999), 176 N.S.R. (2d) 173 (C.A.), at para. 56.
 As a final and most important factor, the Court should stand back and, taking into account the entirety of the circumstances, consider whether application of issue estoppel in the particular case would work an injustice. Rosenberg J.A. concluded that the appellant had received neither notice of the respondent’s allegation nor an opportunity to respond. He was thus confronted with the problem identified by Jackson J.A., dissenting, in Iron v. Saskatchewan (Minister of the Environment & Public Safety),  6 W.W.R. 1 (Sask. C.A.), at p. 21:
The doctrine of res judicata, being a means of doing justice between the parties in the context of the adversarial system, carries within its tenets the seeds of injustice, particularly in relation to issues of allowing parties to be heard.
Whatever the appellant’s various procedural mistakes in this case, the stubborn fact remains that her claim to commissions worth $300,000 has simply never been properly considered and adjudicated.
 On considering the cumulative effect of the foregoing factors it is my view that the Court in its discretion should refuse to apply issue estoppel in this case.
 In Evans v. Campbell (1993), 38 A.C.W.S. (3d) 153, 77 B.C.L.R. (2d) 211 (C.A.), the plaintiff was a lawyer in a law firm when her employment was terminated. She sued the defendants in Small Claims Court for $2,800 representing her share of the firm’s fees. The parties agreed to settle the claim. While the plaintiff refused to sign a release of all claims, she signed a consent dismissal of the Small Claims action. She then commenced an action in Supreme Court for general, special, and aggravated damages, an accounting, a declaration that she was entitled to commissions from the defendants on files on which she performed work, and a declaration that the defendants had been unjustly enriched. Mr. Justice Hutcheon for the Court of Appeal in dismissing the defendants’ appeal found that several items claimed in the prayer for relief, including the declarations, were beyond the jurisdiction of Small Claims court and her claim was not barred by the rule in Henderson, or res judicata.
 The plaintiff Laaljot Singh was in a motor vehicle accident that occurred on July 29, 2006 on the Alex Fraser Bridge when the vehicle he was driving was rear ended by a 70 foot tractor trailer leased by the defendant Jarnail Singh Rai and driven by the defendant Kevin Orval McHatten. Mr. Singh’s infant daughter was a front seat passenger in his vehicle at the time of the accident. The defendant Mercado Capital Corporation was the lessor of the tractor trailer, and the defendant C. Keay Investments Ltd. was the owner of the trailer attached to the tractor.
 The police and an ambulance attended the scene of the accident. The ambulance crew report indicates that Mr. Singh reported injuries to his back and arm from the accident and that his infant daughter possibly had stiffness developing from the collision.
 On July 31, 2006 Mr. Singh completed an ICBC Customer Injury Information - Insurance Claim Application form describing his injuries from the accident as “neck, shoulders, left arm, lower back, left leg, left foot”.
 Mr. Singh was informed by ICBC on or about August 2, 2006 that ICBC determined he was 100 percent at fault for the accident. As a result Mr. Singh retained Gurjit Tiwana, a lawyer of the law firm Cobb St. Pierre Lewis to assist him with disputing ICBC’s determination.
 On August 29, 2006 Ms. Tiwana wrote to ICBC stating that the law firm had been retained by Mr. Laaljot Singh to represent him “with respect to the above mentioned claim number,” that “Mr. Laaljot [sic] wishes to dispute your decision regarding liability”, and that the firm was drafting Mr. Singh’s claim which the firm intended to serve on ICBC.
 On September 27, 2006 Mr. Singh filed his Notice of Claim in the Provincial Court of British Columbia (Small Claims Court) Surrey Registry (file number 60386) against the defendants Kevin Orval McHatten and Jarnail Singh Rai. Next to the portion on the form for “What Happened?” Mr. Singh’s claim is described as follows:
On July 29, 2006 around 2:10 p.m. the Claimant was driving his vehicle and was rear ended by a semi trailer driven by the Defendant, Kevin Orval Mchatten. Jarnail Singh Rai is the owner of the vehicle driven by Kevin Orval Mchatten. The Defendant was 100% responsible for the collision. The Claimant was travelling in his lane on Nordel Way making his way on to the Alex Fraser Bridge. As the claimant made his way on to the bridge the traffic on the bridge slowed down and as the Claimant slowed down, his vehicle was struck from behind by a semi trailer bearing license plate no. 4893HE, driven by the Defendant, Kevin Orval Mchatten. As a result of the collision the Claimant’s vehicle suffered damages. The repair costs of the claimant’s vehicle was about $7045.85.
 Next to the part of the form for stating “How Much”, Mr. Singh’s Notice of Claim notes:
Vehicle damage & Repair Costs
 On November 29, 2006 a Reply was filed on behalf of the defendants.
 The Small Claims trial took place before Judge MacGregor on March 1, 2007. The parties were represented by counsel. A review of the transcript discloses that what was in dispute was ICBC’s decision on liability, and the resulting fact that Mr. Singh was required to pay a $300 deductible and an increase in his ICBC insurance premiums.
 At the opening of the trial this exchange occurred:
29 MS. TIWANA: By way of just a brief opening, Your
30 Honour, the issue to be decided in this case is
31 one of liability; in other words, who was
32 responsible for the collision that occurred on
33 Alex Fraser Bridge in July of 2006, sorry, July
34 29, 2006. And Mr. Singh’s position is that ICBC
35 wrongly decided the matter of liability and that
36 the defendant was a hundred percent responsible
37 for the motor-vehicle accident and not him.
38 The claimant was travelling northbound on
39 Nordel Way which merges onto Alex --
40 THE COURT: In not finding that the defendant was --
41 MS. TIWANA: In not finding that the defendant was
43 THE COURT: The defendant, okay, not finding. What
44 was the result of the ICBC decision on liability?
45 MS. TIWANA: ICBC found that Mr. Singh was a hundred
46 percent liable and Mr. Singh --
47 THE COURT: Okay, that Mr. Singh was 100 percent, not
1 even 50-50, okay, so --
2 MS. TIWANA: No, not even 50-50. And Mr. Singh is
3 saying --
4 THE COURT: So decided the claimant was a hundred
5 percent liable, and you want it the other way
7 MS. TIWANA: I want it the other way around, yes.
8 THE COURT: Okay, all right.
9 MS. TIWANA: We want the defendant to be liable a
10 hundred percent, Your Honour to find that the
11 defendant was a hundred percent liable; in the
12 alternative, equally attribute liability 50-50.
 Ms. Tiwana then filed as an exhibit an estimate in the amount of $7,045.84 from Dueck Landsowne Autobody relating to the damage to Mr. Singh’s vehicle.
 At one point during his evidence Mr. Singh was referred to the damage estimate, but Ms. Tiwana indicated that damages was not in issue, “just liability”:
36Q And, sorry, you said the damages were about
38A Yes, 7,000.
39Q And you get that from the estimate report?
41 MS. TIWANA: Your Honour, as indicated, the amount of
42 damages or the cost of the damages isn’t of
43 issue, it’s just liability.
 The only witness for the claimant Mr. Singh was Mr. Singh who testified through an interpreter. The witnesses who testified for the defendants were Patrick Hood and Stephen Moore who are both truck drivers and witnesses to the accident, and the defendant Mr. McHatten. The evidence of the witnesses related to the cause of the accident. At the conclusion of the evidence and closing arguments, Judge MacGregor gave reasons for judgment and concluded that “this accident was caused by the negligence of Mr. McHatten, and that liability falls 100 percent on Mr. McHatten for this accident”.
 There was then a lengthy exchange between counsel and the court on whether damages was in issue. Mr. Kaatz, counsel for ICBC (as he described himself) indicated that he understood the trial was only on the issue of liability, and damages were to be determined later. Mr. Kaatz was also not aware what ICBC had paid to repair Mr. Singh’s vehicle and asked that the order reflect that the “costs of repairs covered by ICBC, rather than a dollar amount”. Mr. Kaatz also took no issue with Ms. Tiwana’s statement that Mr. Singh’s personal injuries were not in issue but were to be determined later:
24 THE COURT: Accordingly, I take it there is no issue
25 as to damages?
26 MR. KAATZ: Well --
27 THE COURT: The claim of $7,045.84 has been proven by
28 Mr. Singh. He will have judgment --
33 MR. KAATZ: Well, we, counsel and I, didn’t discuss
34 damages. Usually in a liability only trial we --
35 THE COURT: Okay.
36 MR. KAATZ: -- adjourn liability, so perhaps -- is
37 that premature? I mean, ICBC will have -- the
38 normal procedure will be followed in assessing
39 those damages and they’re always welcome to
41 THE COURT: Well, there’s still a claim here.
42 MR. KAATZ: Yeah.
 Ms. Tiwana then informed the court after speaking to Mr. Singh that his vehicle had been fully repaired. Mr. Kaatz then stated:
45 MR. KAATZ: Well, we might be jumping the gun. I
46 Think we’re going to -- ICBC will -- I don’t
47 know, is the vehicle a write-off? Is it not
1 being repaired?
2 MS. TIWANA: No.
21 THE COURT: Well, I gather the repairs have already
22 been done.
23 MS. TIWANA: Yeah, they have.
24 MR. KAATZ: But ICBC is funding that and paying for
26 MS. TIWANA: I think what had happened is --
27 THE COURT: Yes.
28 MS. TIWANA: -- Your Honour --
29 THE COURT: Yes.
30 MS. TIWANA: -- his insurance went up.
31 MR. KAATZ: So really the only --
32 THE COURT: Yes, okay.
33 MR. KAATZ: He already has money for that. The only
34 -- the only --
35 THE COURT: All right.
36 MR. KAATZ: It’s the insurance rate that will now be
37 adjusted accordingly, so we don’t need to --
38 THE COURT: Okay.
39 MR. KAATZ: -- go any further and that’s why I wasn’t
40 prepared to address that issue today.
41 MS. TIWANA: Yes.
42 THE COURT: All right. So, the --
43 MR. KAATZ: So --
44 THE COURT: There was no issue with respect to the
46 MR. KAATZ: Because he already has a repaired car.
47 THE COURT: Because the car has been repaired now --
1 MR. KAATZ: So we don’t need to go further.
2 THE COURT: -- there’s no issue, so the -- with
3 respect to the accident then, the defendant -- or
4 the defendant is responsible, the claimant is
5 successful, and necessary adjustments to Mr.
6 Singh’s insurance rates will then be made
8 MR. KAATZ: That’s right, rather than dealing with the
10 MS. TIWANA: However, however, Your Honour, the --
11 THE COURT: But he’s out of pocket the money right
13 MS. TIWANA: Exactly, that’s what he wants to address.
14 Fine, the $7,045 is covered by ICBC, but he’s out
15 the filing fees, he’s out the servicing fees.
16 THE COURT: Yes.
17 MS. TIWANA: And he’s, in fact, he’s out $300
18 interpreter fees as well to come to trial today.
26 THE COURT: -- and interest?
27 MR. KAATZ: Because we haven’t looked behind this
28 file. My understanding was that ICBC paid. I
29 didn’t realize that he -- don’t know the extent
30 of his insurance or anything about his insurance
31 details, but typically ICBC will pay collision --
32 MS. TIWANA: My understanding, Your Honour, is ICBC
33 covered the accident, put it on his insurance
34 claim. His premiums went up.
35 MR. KAATZ: He’s already --
36 THE COURT: Okay. And he had to pay the deductible.
37 MS. TIWANA: And he’s paying the deductible and the
38 premiums as well as --
39 THE COURT: An increased premium.
40 MR. KAATZ: Right. So that’s what --
41 THE COURT: Oh, okay. So, but ICBC paid for the --
42 MS. TIWANA: 300 deductible.
43 THE COURT: -- expenses save the 300-dollar
11 THE COURT: Okay. But you told me initially that
12 there was no issue when the exhibit went in --
13 MR. KAATZ: Well --
14 THE COURT: -- that that was the cost of repair, and I
15 asked there was no issue --
16 MR. KAATZ: No, it’s my fault I understand. I assumed
17 that that was ICBC’s document and then realized
18 it wasn’t.
19 MS. TIWANA: And you didn’t anticipate --
20 THE COURT: Okay.
21 MR. KAATZ: Yeah, I only thought we were -- yeah --
22 THE COURT: So I put repair costs --
23 MR. KAATZ: I didn’t get past the liability --
24 THE COURT: Repair costs payable by ICBC.
25 MR. KAATZ: Yes.
26 THE COURT: That’s what I wrote at the bottom.
27 MR. KAATZ: That’s -- yeah, and then for the 7,000
28 would be crossed out and initialled by you.
29 THE COURT: So, and it’s bracketed, okay.
30 MR. KAATZ: Yes. But, so he can’t -- if the repair
31 costs are less than 7,000 --
32 THE COURT: Yes, I know. He’s not going to get a
33 judgment for 7,000 for it.
34 MR. KAATZ: Right.
9 THE COURT: Right. And it’s the 300-dollar deductible
10 that goes back to Mr. Singh, and, of course,
11 whatever premium adjustment has been --
12 MR. KAATZ: Yes.
13 THE COURT: Okay, so I think that should do it. Now
14 the formal -- this is a record, this isn’t the
15 formal judgment, so counsel can draft the formal
16 judgment as you agree.
17 MR. KAATZ: Okay. I could -- I’ll do it --
18 THE COURT: If you wish to.
19 MS. TIWANA: Yes, please. Thank you.
20 THE COURT: Okay. And the formal judgment, of course,
21 doesn’t have to have that amount in it. Just can
22 see that all repair costs covered by --
23 MR. KAATZ: Okay.
24 THE COURT: -- ICBC.
25 MR. KAATZ: Is that -- is there a form that we would
26 submit to the registry like that or --
27 THE COURT: Oh, I think you’ll have to get that from
28 your firm or something.
29 MR. KAATZ: My firm is ICBC, by the way.
30 THE COURT: Oh, well, I’m sure ICBC knows what form of
31 judgment they like to see.
32 MR. KAATZ: Actually -- yeah.
 After the exchange with counsel, Judge MacGregor concluded:
 THE COURT: I will order then, to back up, that Mr. Singh receive the $300 deductible and any difference in insurance rate or premium that has been charged to him as a result of this accident; that he receive the costs of the claim, the $156 in filing fees, $40 in service fees, and $300 for the cost of an interpreter.
 The Trial Record Order form provides that the order made was:
LIABILITY 100% TO MR. McHATTEN
REPAIR COSTS PAYABLE BY ICBC
$300 DEDUCTIBLE AND PREMIUM ADJUSTMENT
TO BE PAID FROM ICBC TO CLAIMANT
T. KAATZ TO DRAFT JUDGMENT
 On June 27, 2008 the plaintiff Mr. Singh commenced this action and claims that the collision was caused or contributed to by the fault or negligence of the defendant Mr. McHatten, and that the remaining defendants were negligent in failing to maintain the tractor and trailer in proper mechanical condition. The plaintiff alleges that as a result of the collision he sustained personal injury, loss and damage, including injuries to his neck, back, shoulders, left arm, left leg, and left foot. He claims general damages, special damages, interest and costs.
 On July 2, 2009 the defendants filed a statement of defence and allege in para. 5 that “the plaintiff sued the defendants for damages in Small Claims Court relating to the accident on July 29, 2006. Judge MacGregor made an order with respect to the plaintiff’s claim on March 1, 2005 and therefore, the matter is res judicata.”
 The defendants contend that the criteria are met for both issue estoppel and cause of action estoppel. The plaintiff’s claims in both his Small Claims action and this action arise out of the same accident. Judge MacGregor found that the defendant driver Mr. McHatten was responsible for the accident and awarded damages. The damages may not have been as significant as if Mr. Singh had advanced a claim for damages for personal injury, but he was obliged to bring all matters before the court at that time.
 The plaintiff argues that the facts of the case concern cause of action estoppel and the fourth criteria has not been met. The transcript of the proceedings in Small Claims Court show that the only issue considered was liability and the issue of damages was to be dealt with at a later date. Moreover, at the time the Small Claims action was commenced in September 2006, less than two months after the accident, it was far too early for an assessment of any personal injury damages, and any damages may be beyond the monetary limit of Small Claims Court. Alternatively, based on the rule in Henderson there are special circumstances that exist and the court should exercise its discretion and decline to apply the plea of res judicata.
 In my view the cause of action in the prior Small Claims action is distinct from the cause of action in this Court. While the Notice of Claim filed by the plaintiff in Small Claims Court claimed “vehicle damage & repair costs”, it is clear on a review of the transcript of the proceedings that the plaintiff’s vehicle had been repaired by ICBC; he was not seeking damages for repair costs because ICBC had paid the repair costs. The primary issue was ICBC’s determination that the plaintiff was wholly at fault for the accident and the plaintiff’s increased insurance premiums. Counsel for the plaintiff made it clear that the claim for personal injuries and damages would be dealt with later, and that was understood by counsel for ICBC. On that basis neither the third nor the fourth criteria for cause of action estoppel, or the first criteria for issue estoppel have been met.
 The facts of this case are similar to the facts in Innes v. Bui and Evans v. Campbell. Whether issue estoppel or cause of action estoppel is applicable, at the end of the day the court must determine whether it should exercise its discretion to bar the action by reason of res judicata or whether there are exceptional or special circumstances that should apply.
 I find that all of the criteria necessary for cause of action estoppel or issue estoppel have not been met. If I am wrong, there are special circumstances not to apply res judicata for to do so would cause a real injustice to the plaintiff. The plaintiff has not had his day in court on his claim for damages for personal injuries arising out of the accident. It may be that the issue of liability is res judicata, but the application was not argued on that basis. Rather, it is argued that the plaintiff should have brought his claim for personal injuries at the same time he brought his action in Small Claims Court. In certain circumstances that may be correct but only if the claim can be brought within the monetary limit of Small Claims Court. However, the fact remains that the plaintiff’s claim for damages for personal injuries has never been before a court and considered. To dismiss the plaintiff’s claim at this stage of the litigation would be denying the plaintiff an opportunity to be heard on that issue and unjust.
 The application is dismissed with costs.