In Zhang v. 328633 BC Ltd. 2020 BCSC 1521, the injured claimant sought damages for injuries she suffered in 2 motor vehicle accidents. In the first motor vehicle accident, she was rear-ended and ICBC admitted fault. In the second motor vehicle accident, she was a passenger in a transit bus. An unidentified driver tried to make a right turn across the bus lane which caused the bus driver to brake aggressively. As a result, the injured claimant was thrown out of her seat.
For the second motor vehicle accident, the injured claimant argued that the bus driver was negligent for coming to a sudden stop which caused her injuries. In particular, it was argued that the bus driver ought to have anticipated the unidentified driver turning right earlier which would have allowed him to safely stop in time. ICBC, on the other hand, argued that the bus driver was not negligent throughout the trial.
A video inside the bus was crucial evidence at trial. It clearly showed that the truck “was there to be seen” by the bus driver for 7 seconds and had its brake lights on. The trial judge concluded that this should have put the bus driver on notice of a potential risk that required some caution on his part. At a minimum, the uncertainty should have caused him to slow down in order to better assess the truck driver’s intentions. The bus driver should have considered that the truck driver potentially intended to merge into the bus’s lane. Indeed, there was a strong possibility that this was the truck driver’s intention. On this basis, the trial judge concluded that the bus driver was negligent.
Substantial damages were awarded to the injured claimant for the serious and life changing injuries suffered as a result of the accidents.
After the trial concluded, the injured claimant brought an application for special costs against ICBC for reprehensible conduct for delaying disclosure the video for more than 7 years. Failing or delaying to disclose documents may constitute an abuse of the court processes. The video footage was clear and overwhelming evidence as to what actually occurred, and was so integral to the case on liability that the production delay rises to the level of “reprehensible conduct”. ICBC offered no explanation for their late disclosure.
This is not the first time that ICBC has been punished for withholding evidence at trial that was damaging to their own case. In a prior blog post on ICBC reprehensive conduct, we reviewed a case where ICBC withheld video surveillance of an injured claimant showing her struggling with her injuries instead only disclosing video which ICBC perceived to help their own case against her. In that case, special costs were also awarded for ICBC’s disregard for the disclosure rules.