Miller v. Norris, 2013 BCSC 552

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Miller v. Norris, 2013 BCSC 552 Date: 20130402 Docket: 12-0892 Registry: Victoria Between: Kristy Miller Plaintiff And: Robert Norris Defendant Before: Master Bouck Reasons for Judgment Counsel for the Plaintiff: L.G. Oss-Cech Counsel for the Defendant: G.P.G. Deshon Place and Date of Trial/Hearing: Victoria, B.C. March 7, 2013 Place and Date of Judgment: Victoria, B.C. April 2, 2013 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 If withdrawn, the defendant seeks leave to plead the defence of inevitable accident.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), (BC SC), 28 C.P.C. (4th) 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 suchmatters 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, anindependent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to bepleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several moremonths 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 bythe 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 wereprovided 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 submitsthat an award of costs can alleviate any prejudice suffered by the plaintiff in that regard.

Even if I were to award the plaintiff costs anddisbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed tothe defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of theSupreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be coveredby 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 adifferent view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after theaccident. [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 ofa 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 relevantwitnesses 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