18 Sep Kava and ICBC’s Evidentiary Burden to Prove a Breach

In Venkataya v. Insurance Corporation of British Columbia,  2015 BCSC 1583, the Plaintiff was involved in a single vehicle collision after having attended a gathering at a friend’s home where food was eaten and Kava, Fiji’s national drink, was drank. The Court stated that Kava is “often consumed at ceremonies, celebrations, or among friends and relatives. It is a product that is made or extracted from the root of a plant. It is usually then placed into little bags, as tea would be, and then strained and consumed as tea. Herbal Kava is also, apparently, sold in health-food stores.”

On his way home from the gathering, Mr. Venkataya became incapable of properly controlling his vehicle. ICBC took the position that because Mr. Venkataya had consumed Kava prior to the collision, he must have been under the influence of an intoxicating substance. ICBC denied the Plaintiff insurance coverage pursuant to section 55(1.1)(8)(a) of the Insurance (Vehicle) Regulation, B.C. Reg. 441/83, and failed to pay Mr. Venkataya’s the replacement cost of his vehicle as per his insurance policy.

The Court, however, recognized that the burden was on ICBC to prove on a balance of probabilities that Mr. Venkataya was incapable of operating his motor vehicle as a result of having consumed a drug or intoxicating substance. Despite ICBC retaining a renowned pharmacological expert, ICBC was unable to meet this burden. There was not sufficient expert evidence to establish that the consumption of Kava in general, or the consumption of Kava in the quantities testified to by the witnesses at the gathering, would be sufficient to cause intoxication in Mr. Venkataya; the expert evidence with respect to the intoxicating effects of Kava was not persuasive.

As a result, the Court found for the Plaintiff and ordered ICBC to pay Mr. Venkataya the replacement cost of his vehicle, as per his insurance policy with ICBC.

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