IN THE SUPREME COURT OF BRITISH COLUMBIA

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

[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