IN THE SUPREME COURT OF BRITISH COLUMBIA

Date: 20130402

Docket: 12-0892

Registry:
Victoria

Between:

Kristy Miller

Plaintiff

And:

Robert Norris

Defendant

Before:
Master Bouck

Reasons for Judgment

Introduction

[1]            
This is personal injury claim. The plaintiff alleges that she suffered
injuries as a result of a motor vehicle accident which occurred on February 22,
2011.

[2]            
Pleadings were closed in the action on April 10, 2012. In his response,
the defendant admits liability for the accident.

[3]            
The defendant now applies for leave to withdraw that admission. If
withdrawn, the defendant seeks leave to plead the defence of inevitable
accident.

[4]            
No trial date has been set as the length of the trial will be influenced
by the outcome of this application.

Facts

[5]            
The plaintiff’s injuries stem from a traffic pole striking the
windshield of her vehicle.

[6]            
The response admits that the pole was launched after being struck by the
defendant’s vehicle. Mr. Norris suffered a heart attack while driving which led
to his vehicle veering into a median and striking the traffic pole.

[7]            
The basis for this application lies in the circumstances surrounding
investigations into the cause of the accident and the subsequent instructions
provided to defence counsel.

[8]            
The plaintiff reported the accident to the Insurance Corporation of
British Columbia (“ICBC”) on the day of the accident. An adjuster was
assigned to the claim file the next day.

[9]            
Shortly after the assignment, the adjuster recorded in his file notes
that “using a heart attack as an inevitable accident defence … is not going
to go anywhere”.

[10]        
Meanwhile, Mr. Norris’ claim was assigned to a separate adjuster. That
adjuster spoke with Mr. Norris on March 9, 2011, and received information
concerning the defendant’s pre-accident health and immediate post-accident medical
treatment.

[11]        
Mr. Norris met in person with another adjuster on March 23, 2011. A
statement was taken from the defendant.

[12]        
The adjuster’s notes record the following: “I think that there is no
defence to inevitable accident. [Mr. Norris] was sick and continued to drive”.
Mr. Norris’ statement was to the effect that he felt nauseous and vomited
prior to the accident. As well, the adjuster noted that the heart attack was
said by Mr. Norris to have “come out of the blue”.

[13]        
Some investigations were carried out, including communications with
Mr. Norris’ doctor’s office. The adjuster did not speak with Mr. Norris’
doctor directly.

[14]        
On May 24, 2011, the plaintiff’s claim file was transferred to a second
ICBC adjuster. Mr. Morris’ claim file was transferred to this same individual a
few weeks later.

[15]        
On July 14, 2011, after an internal review of the files by an ICBC
manager, the adjuster was told to investigate the inevitable accident defence.

[16]        
On February 8, 2012, an independent adjuster was retained by ICBC to
conduct that investigation.

[17]        
The independent adjuster was in contact with the ICBC claim adjuster
during the month of February 2012.

[18]        
Mr. Norris was served with the notice of civil claim in March 2012 and
reported the same to ICBC.

[19]        
Upon receipt of this information, yet another ICBC adjuster prepared
what is known as a suit report with instructions to defence counsel. The
instructions were to admit liability in the response to civil claim as the
accident “did not appear to be an inevitable accident”.

[20]        
Defence counsel was instructed to close the pleadings within 21 days.

[21]        
The independent adjuster continued with its own investigations. A written
report was delivered to ICBC in July 2012. However, that report was not
forwarded to defence counsel until January 2013.

[22]        
The claims files changed hands yet again. The current instructing ICBC adjuster
assumed conduct of this matter in August 2012.

[23]        
By November 2012, defence counsel had interviewed Mr. Norris and
conducted legal research on the question of inevitable accident based on the
facts that were then made known to him.

[24]        
Mr. Deshon recommended to the instructing adjuster that this application
be brought and a plea of inevitable accident be made in the response to civil claim.

[25]        
On or about November 12, 2012, Mr. Deshon advised plaintiff’s counsel
that he was seeking instructions to that effect.

[26]        
Upon receipt of this recommendation, ICBC undertook an internal review before
providing instructions.

[27]        
Examinations for discovery of both parties were conducted in November,
2012.

[28]        
The instructions to proceed with this application were provided to
defence counsel on January 29, 2013. The following day, defence counsel
received a second report from the independent adjuster.

[29]        
There is no suggestion of any delay on defence counsel’s part in setting
down this application.

[30]        
The plaintiff relies on an affidavit of her counsel’s legal assistant.
In that affidavit, the legal assistant deposes that plaintiff’s counsel
considered the defence of inevitable accident when first retained by the
plaintiff and “instructed me not to incur disbursements or pay for any of the
plaintiff’s treatments until further instructions”.

[31]        
After liability was admitted by the defendant, the plaintiff attended a
pain management clinic at the cost of $5,000. In addition, plaintiff’s counsel
has incurred disbursements of $3,715 in the prosecution of the claim.

[32]        
It is suggested by the plaintiff that the plea of inevitable accident
will lengthen the trial in this matter and delay a determination of the claim
on its merits.

[33]        
The defendant does not challenge the plaintiff’s assertion that all of
the individuals involved in the handling of the parties’ claim files are
experienced and knowledgeable adjusters.

Discussion

[34]        
In determining whether an admission ought to be allowed to be withdrawn,
the court must take into account the following:

1. Whether there is a triable issue
which, in the interests of justice, should be determined on the merits and not
disposed of by an admission of fact; and

2. In applying that test, all of
the circumstances surrounding the admission must be considered including
whether:

a. the admission was made
inadvertently, hastily or without knowledge of the facts;

b. the fact admitted was not
within the knowledge of the party making the admission;

c. the fact admitted is not true;

d. the fact is one of mixed fact
and law;

e. the withdrawal of the admission
would not prejudice a party; and

f. there has been no delay in
applying to withdraw the admission.

Hamilton
v. Ahmed (1999), 28
C.P.C. (4^th) 139 (B.C.S.C.), approved in Munster & Sons
Developments Ltd. v. Shaw, 2005 BCCA 564.

[35]        
The admission of liability (or more accurately, the rejection of the
inevitable accident defence), was not made hastily, inadvertently or without
knowledge of the facts. As noted, the individual adjusters involved in these
claims are experienced in such matters and clearly put some thought towards the
inevitable accident defence.

[36]        
The question of liability is one of mixed fact and law. However, it may
not be said that the fact admitted is false.

[37]        
In terms of delay, the ICBC internal review of liability was initiated
in the summer of 2011. For unexplained reasons, an independent adjuster was not
retained for some seven months. The independent adjuster was in contact with
the adjuster prior to be pleadings being closed and reported to ICBC in
July 2012, yet there was no change in the instructions on liability for
several more months and then only as a result of defence counsel’s initiative.

[38]        
The only so-called “new” evidence is the production of Mr. Norris’
pre-accident health records. These records were obtained by the independent
adjuster and provided to ICBC in July 2012. The records could have been
obtained much earlier in this process; instead, the adjusters chose to rely on
the information obtained from Mr. Norris’ doctor’s office. Most importantly, no
new instructions were provided to defence counsel upon receipt of this
information.

[39]        
The plaintiff has incurred expense and proceeded with this lawsuit based
on the admission of liability. Defence counsel submits that an award of costs can
alleviate any prejudice suffered by the plaintiff in that regard. Even if I were
to award the plaintiff costs and disbursements “thrown away” to date, the
withdrawal of the admission and the plea of inevitable accident leaves the
plaintiff exposed to the defendant’s costs. Furthermore, I am unable to
characterize the pain clinic expense as a disbursement under Rule 14-1(5) of
the Supreme Court Civil Rules. Rather, that expense is more accurately
described as an item of special damages which would not be covered by any costs
award.

[40]        
This case bears some resemblance to the circumstances discussed in Rohling
(Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master).
In that case, the defence sought to withdraw an admission of liability in order
to plead inevitable accident (based on the recommendation of counsel). At para.
20, the court states:

I am not satisfied that it is in
the interests of justice to allow the withdrawal of the admission simply
because Mr. MacLeod takes a different view of the facts than taken by the
adjuster and independent adjuster when the matter was originally considered shortly
after the accident.

[41]        
A similar analysis of this question is given in Oostendorp v. Sarai, [1973]
B.C.J. No. 570 at para. 10:

It would be wrong to encourage a
practice that enabled parties to admit liability one day and withdraw the
admission later on the basis of a different view taken of the same facts by
some other person.

[42]        
I would add that here, multiple adjusters took the view that liability
ought to be admitted. Furthermore, even though the relevant witnesses with
respect to the inevitable accident defence are known to the parties, the
passage of time may have affected these witnesses’ memories: Rohling
(Guardian ad litem of) v. Proudman at para. 19.

[43]        
In the result, I find that the application ought to be dismissed, with
costs to the plaintiff.

                       “C.
P. Bouck”                  

Master
C. P. Bouck