Miscarriage of Justice Corrected
The Court of Appeal ordered a new trial for this 15 year old car accident personal injury claim involving soft tissue injury, mild traumatic brain injury and unaccepted ICBC offers of $50,000, $110,00 and $120,000 (Han v. Park, 2015 BCCA 324).
A documents binder allowed to be given to the jury included: a police accident report; the claimant’s ICBC statement; letter to ICBC Fairness Commissioner, medical, wage loss, disability, and school records; and “miscellaneous” documents.  The binder was entered by consent. It was entered in the absence of the jury and the respondents’ told the judge the documents would be used to cross-examine witnesses. There was no document agreement describing the use that could be made of the documents. The Exhibit was provided to the jury without any instructions on how they could use the documents.

The fact that an appellant may have consented to the admission of the records was not the determinative factor in deciding whether documents should have been entered into evidence, and will not preclude the ordering of a new trial with costs to the appellant after prejudicial clinical records were entered into evidence.

The court found that the inclusion of some of the clinical records and material contained in the binder of documents had the effect of portraying the claimant as a difficult, manipulating, and stubborn individual.  This portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

In ordering a new trial the Court of Appeal made it clear:

[36]  In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice

The Court of Appeal also disagreed with the trial judge’s decision to allow the jury to have the claimant examination for discovery transcript:

[39]  I agree with the appellant there was a significant risk that the jury would give greater weight to the transcribed portions than to the appellant’s testimony since there was no transcript of her answers given in evidence in response. The judge’s instruction to the jury that the transcript was an aide memoir did not overcome the resulting prejudice to the appellant resulting from the jury having only one side of the picture during their deliberations…

[40]  This procedure was highly irregular and prejudicial to the appellant, resulting in a substantial wrong or miscarriage of justice.


As to the ICBC offer to settle, the Court of Appeal again disagreed with decision of the trial judge to award costs against the claimant. ICBC made a formal offer to settle for $50,000. The judge noted this was “an ‘offer to settle’ as defined in Rule 9-1(1)(a) of the Rules since it was delivered pursuant to Rule 37 of the former Supreme Court Rules, [B.C. Reg. 221/90]” and could therefore be considered pursuant to Rule 9-1(4) in the exercise of the court’s discretion as to costs: at paras. 11–12. Five years later ICBC made an informal offer to settle for $110,000, which they increased to $120,000 . The appellant was awarded $51,300 by the jury  four years after the offer of $120,000.00.

The trial judge found that the appellant ought to have accepted the $50,000 settlement offer since she had not obtained medical opinion evidence that supported she was suffering from a brain injury and she had become aware of medical opinion evidence suggesting the contrary. The judge highlighted that the appellant never produced reports for the doctors she claimed had diagnosed a brain injury.  In overturning the trial judge’s award the Court of Appeal pointed out:

[53]    I agree with the appellant that the judge erred in adjusting the initial offer to reflect its 2013 value. This approach is not supported in law. As a result, the amount that the appellant was awarded ($51,300) exceeded the formal offer ($50,000) and the judge had no basis to award costs to the defendants pursuant to Rule 9-1(5)(d).

[54]         The trial judge also erred in applying the incorrect standard to determine which party was successful. The appellant was clearly the successful party in the action, as that standard is described in Loft. Though the appellant was not awarded the entire amount in damages that she sought, she established liability under a cause of action – as in Loft, by way of the defendants’ admitting liability and conceding some damages – and she obtained a remedy. The defendants did not obtain a dismissal of her case, either with respect to liability or damages.

 Posted by Vancouver Personal Injury Lawyer Mr. Renn A. Holness, B.A. LL.B.

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