Cayou v. Cayou,2010 BCSC 1224
September 1, 2010- This ICBC injury claim originates in an intersection car accident in British Columbia . The injury claimant mother was the front seat passenger in her own car which was driven by her daughter. The mother was injured in the accident and sued her daughter but the problem was that she let her daughter drive without a valid British Columbia driver’s licence! So ICBC , as the mother’s liability insurance carrier, denied coverage to the mother under her policy of motor vehicle insurance. This denial of coverage was based on the ground that she breached a condition of that policy, by permitting an unlicensed person to drive the insured motor vehicle. It gets worse, ICBC defended the daughter claiming the other driver was at fault. However the other driver made an injury claim against the daughter and mother which ICBC settled for $221,677.66. ICBC then notified the mother, who was the injury claimant, she owed ICBC $221,677.66 as her daughter was driving her car with no licence. Can it get any worse? yes. The injury claimant was asking the court to make a decision on fault for the accident before incurring $20,000 to $30,000.00 in expenses for calling her medical experts and loss of earnings evidence (this is called “severance of issues”). This request was denied and she is now faced with taking her case in front of a jury.
With respect to the new Rules of Court the judge concluded that the power to sever issues is the same in substance between the former rule and the current rule. Therefore, some suggested matters for consideration, in a determination of the severance of questions of fact or law, were stated in Nguyen v. Bains and adopted in Biggs v. I.C.B.C.:
a. A judge’s discretion to sever an issue is probably not restricted to extraordinary or exceptional cases. However, it should not be exercised in favour of severance unless there is a real likelihood of a significant saving in time and expense.
b. Severance may be appropriate if the issue to be tried first could be determinative in that its resolution could put an end to the action for one or more parties.
c. Severance is most appropriate when the trial is by judge alone.
d. Severance should generally not be ordered when the issue to be tried is interwoven with other issues in the trial. This concern may be addressed by having the same judge hear both parts of the trial and ordering that the evidence in the first part applies to the second part.
e. A party’s financial circumstances are one factor to consider in the exercise of the discretion.
f. Any pre-trial severance ruling will be subject to the ultimate discretion of the trial judge. Posted by Mr.Renn A. Holness
Issue: Should an injury claimant have a right to ask a judge to decide on this issue of fault before proving the injury and resulting losses?