Court of Appeal dismisses City's appeal of trip and fall verdict

In reasons for judgment released today, a division of the BC Court of Appeal dismissed an appeal brought by the City of Salmon Arm in respect of trip and fall which occurred on a city sidewalk.  In Binette v. Salmon Arm (City), 2018 BCCA 150, the court upheld the verdict of the trial judge finding the city liable to the plaintiff in negligence in circumstances where the plaintiff tripped over a protruding piece of metal from a city sidewalk.  Some months prior to the incident, the city had been alerted that a broken sign was found near the site, and as such should have been aware that the metal base of that sign could be a potential hazard to citizens.  A city employee initially searched the area for the base of the sign, but could not find it as there was snow on the ground.  No further searches were conducted thereafter.  The court of appeal said:

[1]            This is an appeal from a summary trial judgment that found the City of Salmon Arm (“City”) liable in negligence for injuries suffered when Cindy Lee Binette tripped over the metal base of a broken traffic sign that was protruding from the sidewalk.

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[4]            In my view, the judge correctly approached the issue as being whether the City breached its standard of care by failing to follow its standard practice in circumstances that it knew or ought to have known created an immediate hazard in a particular area. This is not a question about the general policy of replacing signs of different types. As such, this case does not have implications for that general policy and does not alter it in the ways the City contended on appeal. Rather, the appeal turns on whether the trial judge was entitled to make certain critical findings of fact sufficient to trigger the City’s standard practice in responding to an immediate hazard.  I will address that question first.

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[20]        Based on the judge’s findings, the City knew of the potential hazard, knew why it could not be dealt with immediately, and knew the vicinity of the potential hazard. The judge concluded that making no effort to prioritize dealing with identifying the location of the hazard as soon as it would reasonably be possible to do so, that is, when the snow in that area had disappeared, was a breach of its standard practice and the standard of care. Those conclusions were open to him on the evidence.

[21]        The judge did not, nor do I intend to, comment on exactly what was required of the City in these circumstances. That decision rests with the City. The issue here is not the sufficiency of the actions taken but the lack of action. The City did not make best efforts, regardless of what those efforts would or could have been. The City needed to address the hazard as soon as reasonably possible. The judge concluded, based on the lack of any snow banks in the photos, that the area had been snow free for some time and that if best efforts had been used the hazard would have been identified and dealt with.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0150.htm

Court of Appeal awards ICBC costs thrown away where impending trial adjourned

In reasons for judgment released today, the BC Court of Appeal overturned the order of a Master denying the defendant costs thrown away in circumstances where the plaintiff was successful in obtaining an adjournment of an impending  trial.  In Bolin v. Lylick, 2018 BCCA 127 the Court of Appeal confirmed that "the usual approach" following a late adjournment application is that the opposing party get their costs thrown away:

[2]          Counsel for the defendants opposed the application for an adjournment, and observed that the trial had already been adjourned once from the first date set, November 16, 2015, to allow for Ms. Bolin’s medical treatment. In opposing an adjournment, the defendants emphasized the trial preparation already completed, said they were ready for trial, and stated that a delay would entail further discoveries and a further independent medical examination so as to make available for trial evidence of the plaintiffs current situation.

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[17]       In this case not only did the judge not hear out counsel for the defendants on the matter of costs, he then gave no reason for departing from the approach applied in those cases which I consider illustrate the approach usually brought to bear in such circumstances. While the judge had discretion to take a different path than is commonly taken, I consider that some explanation, however brief, then should have been given so as to allow this court to review the order.

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[19]       In these circumstances, there is no apparent reason to depart from the usual approach to costs in circumstances of a late adjournment; in other words, there is no apparent reason not to relieve the defendants from the prejudice of the late adjournment by an award of costs thrown away. It is to be remembered that even though the judge did not attribute fault to the plaintiff in the adjournment application, in asking for an adjournment the plaintiff was asking for an indulgence from the court that had adverse consequences for the defendants. I would add to the order made for the adjournment a term that the defendants are entitled to their costs of trial preparation thrown away. I would not define the degree of such wasted costs in the circumstances of this case as was done, for example in Dhillon v. Foster, 2004 BCSC 1782, to which we have been referred, and I note further, that what fits within the waste captured by the term “costs thrown away” is properly a matter for the trial court’s determination.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0127.htm

 

Plaintiff awarded $755,000 in slip and fall at Superstore

In reasons for judgment released today in Harrison v. Loblaws, Inc. (Real Canadian Superstore), 2018 BCSC 575, the court awarded the plaintiff approximately $755,000 in damages stating:

[19]         The totality of the evidence is clear: Ms. Harrison slipped on a large pool of liquid laundry detergent, hit her forehead on the end cap of aisle one, and subsequently fell backwards and hit the back left of her head

...

[96]         Ms. Harrison was 48 at the time of the accident.  She suffered a significant head injury and to this day, suffers from serious headaches and other symptoms which I have detailed.  She has a permanent disability and she has suffered from a loss of confidence and a loss of enjoyment of life as a result of her accident.  Her physical and mental abilities have clearly been impaired.  As described earlier, she is no longer able to walk long distances nor is she able to swim.  Her sensitivities to light, sound, and motion have dramatically affected her.  She has clearly experienced a serious diminishment in the quality and enjoyment of her life.  I note that Ms. Harrison retains a certain degree of optimism about the future and throughout this ordeal, she has taken significant steps to try to improve her circumstances.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/18/05/2018BCSC0575.htm

Court of Appeal Summarizes law on causation in negligence

In reasons for judgment released last week, the B.C. Court of Appeal in British Columbia v. Canadian Forest Products Ltd., 2018 BCCA 124 summarized the law on causation negligence, saying:

[135]     To summarize, the following principles emerge from the Supreme Court of Canada’s jurisprudence on causation in negligence:

a)    The appropriate test for causation is the “but for” test, except in rare circumstances unrelated to this appeal: Clements.

b)    Courts must take a common-sense approach to “but for” causation rather than requiring certain or scientific proof of causation: Snell at 328; Clements at para. 9.

c)     The burden of proof remains with the plaintiff: Snell at 330. However, as in other fact-finding contexts, a court may infer “but for” causation based on an assessment of all the evidence if the defendant fails to introduce sufficient evidence contrary to the plaintiff’s theory of causation: Clements at paras. 10–11.

d)    In determining whether the defendant has introduced sufficient evidence to contradict the plaintiff’s theory of causation, the trier of fact may consider the relative positions of the parties to adduce evidence on causation: Benhaim at para. 54. In other words, evidence should be “weighed according to the proof which it was in the power of one side to have produced and in the power of the other to have contradicted”: Blatch v. Archer (1774), 98 E.R. 969 at 970, cited in Clements at para. 11, Benhaim at para. 48.

e)    Even if the defendant’s negligence created causal uncertainty and the plaintiff has adduced some evidence in support of its theory of causation, the trial judge is not obliged to draw an inference of causation against the defendant: Benhaim at para. 42.

f)      The trial judge’s decision to infer or not infer causation is a finding of fact and attracts deference on appeal: Benhaim at paras. 36, 42.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/ca/18/01/2018BCCA0124.htm

 

 

Court dismisses ICBC fraud claim

In reasons for judgment released last week, the court in Insurance Corporation of British Columbia v. Mehat, 2017 BCSC 1476, dismissed an action brought by ICBC alleging fraud against a husband and wife who were involved in a single-vehicle accident.  ICBC's case was that the husband and wife had lied to police and ICBC about who was driving their car at the time it crashed into a house.  ICBC alleged that the husband had been driving and was drunk at the time.  The defendants maintained that the wife had been the driver.  In dismissing ICBC's case, Mr. Justice Blok said as follows:

[1]             The plaintiff insurer claims sums totalling $73,421.88, plus punitive damages, for what it describes as a “straightforward case of insurance fraud”.

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[61]         There is no direct evidence that Mr. Mehat was driving the car or, to put it another way, that Ms. Mehat was not driving the car.  The only direct evidence, that is, from any witness who was in a position to know who was driving, is that Ms. Mehat was driving the car...

62]         The issue, then, is whether the circumstantial evidence in this case is sufficient to prove that the representations of the defendants were false...

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[74]         The plaintiff relies on a number of other facts as part of its case.  I deal with these as follows:

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b)    the accident is strange and unexplained: Ms. Mehat did, in fact, provide an explanation to the police, saying to Cst. Johannson that she “got dizzy and couldn’t find the brakes”.  We know from ordinary human experience that many accidents are strange, but it does not necessarily mean that something fraudulent is going on or that the accident could only have happened because the vehicle driver was intoxicated;

c)     Mr. Mehat exhibited signs of excessive alcohol consumption, and this provided a strong incentive to avoid being found to be the driver; and Mr. Mehat was the usual driver of the van: these circumstances also provide an incentive to have another person do the driving.  For that reason I consider these to be neutral facts;

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e)    Ms. Mehat was unable to locate a witness who could corroborate her assertion that she was the driver or at the scene of the accident: I find this fact unpersuasive; and

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[75]         For all of the reasons just outlined I conclude that the plaintiff has failed to meet its burden, on a balance of probabilities, of showing Ms. Mehat was not the driver of the van when it collided with the Sharma house on June 10, 2008.  It follows that the plaintiff has failed to establish that the representations of the defendants were false.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1476.htm

Court awards $1,250,000 in Loss of Future Earning Capacity for soft-tissue and emotional injuries

In reasons for judgment released yesterday, the court in Pearson v. Savage, 2017 BCSC 1435, awarded the 21-year-old plaintiff $1,250,000 for loss of future earning capacity in a case involving soft-tissue and emotional injuries.  In Pearson, the plaintiff suffered soft-tissue injuries which eventually caused depression, anxiety, and PTSD.  In making the award for loss of future earning capacity Madam Justice Loo said as follows:

[201]     It is well known that there are inherent difficulties in assessing awards for hypothetical future events. It is often described as “gazing into a crystal ball” or “an estimate based on prophesies,” and the task is even more difficult when dealing with a young person who have not established a career path:  Shapiro v. Dailey, 2012 BCCA 128 at para. 40.

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[203]     Ms. Pearson was 21 years old when she was injured. She was pursuing a university degree, and had taken time off from her studies to earn an income so that she could continue with her studies.

[204]     I find that she would have obtained a bachelor’s degree, although she may have changed the direction of the course of her studies to focus on her strengths rather than her relative weaknesses in mathematics. Given her personality, her work history, particularly as relayed by Ms. Kingston, Ms. Pearson was exceptional and highly motivated. Ms. Cameron agreed that Ms. Kingston’s description of Ms. Pearson in the workplace is a description of someone with a high degree of emotional intelligence. The components of emotional intelligence include self-awareness, self-regulation, motivation or a passion for work that goes beyond status or money, and the necessary social skills to manage relationships and build networks.

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[207]     Ms. Pearson was only 21 at the time of the accident. However, she possessed the attributes to be exceptional at whatever she pursued. The average full-time full-year earnings for a BC female with a bachelor’s degree, excluding law, for all ages, in 2017 dollars, is $66,927, based on the 2011 National Household Survey. The earnings of those in the 70th, 80th and 90th percentile, is $81,274, $90,360, and $104,096, respectively.

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[211]     Assuming that Ms. Pearson earned an average of $15,000 over her expected lifetime, and based on the economic multiplier, her lifetime with injury earnings is $299,175. Had the accident not occurred her earnings would have ranged from approximately $1,036,000 (economic multiplier) based on the average earnings, to approximately $1,800,000.

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[213]     I conclude that Ms. Pearson has established that there is a real and substantial possibility that she would earn more than the average female with a bachelor’s degree, she would have worked in sports marketing or a similar field, and she would have worked full time, except for limited time off for parental leave.

[214]     I find that an appropriate assessment for loss of earning capacity on a capital asset approach is $1,250,000.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1435.htm#_Toc490471361

Court awards $400,000 in Cost of Future Care for soft-tissue and emotional injuries

In reasons for judgment released yesterday, the court in Pearson v. Savage, 2017 BCSC 1435, awarded the 21-year-old plaintiff over $400,000 for cost of future care in a case involving soft-tissue and emotional injuries.  In Pearson, the plaintiff suffered soft-tissue injuries which eventually caused depression, anxiety, and PTSD.  In making the award for cost of future care Madam Justice Loo said as follows:

[215]     Ms. Pearson seeks an award of cost of future care of $401,868.50, which includes the cost of the medical treatment that the medical experts recommend based on their assessments of her. The purpose of a cost of future care award is to sustain or improve the physical and mental health of the injured person based on what the medical evidence is reasonably necessary: Gignac v. Rozylo, 2012 BCCA 351.

[216]     There is general agreement among the medical witnesses that Ms. Pearson needs treatment, although the names of the treatment may differ slightly.  However, a multi-disciplinary intervention, physical rehabilitation and pain management program, or multidisciplinary chronic pain management program is necessary. This includes physiotherapy, occupational therapy to establish an initial rehabilitation plan, physical therapy, active rehabilitation with a kinesiologist, psychological counselling or therapy, and cognitive behavioural therapy or psychotherapy. She also requires prescription medication for anti-depressants, Botox treatments, and intramuscular stimulation (IMS) or myofascial trigger point injections, and after Ms. Pearson has plateaued following her rehabilitation plan, a vocational or career consultant, and life-long access to a gym.

[217]     Ms. Pearson testified that she is willing to travel to Vancouver for the recommended medical treatment that she needs (assuming of course, that the treatment is not available in Squamish) and as set out in Ms. Craig’s cost of care report. Despite her anxiety with being on the Sea-To-Sky Highway, I believe that she will obtain the treatment she requires, despite the problems she has had in the past.

[218]     Ms. Pearson has found IMS helpful for reducing pain, and Botox helpful for her headaches.

[219]     Ms. Craig prepared a cost of care report based on the recommendations made by the medical experts, including the recommendations in her functional capacity evaluation. The plaintiff points out in argument that no aspect of Ms. Craig’s cost of future care report was challenged...

...

[222]     Ms. Pearson is entitled to damages of $401,868.50 for cost of future care.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1435.htm#_Toc490471362

Court dismisses plaintiff's claim finding accident "never happened"

In reasons for judgment released today, the court in Chaube v. Neja, 2017 BCSC 1415, dismissed the plaintiff's claim finding the alleged car accident "never happened".  In Chaube, the plaintiff alleged she had been injured when the taxi she was in collided with an unknown car while backing out of a parking stall.  The defence argued that no collision occurred, but that the taxi driver simply applied his brakes and stopped.  In agreeing with the defence and dismissing the claim, Mr. Justice N. Smith said as follows:

[1]             The plaintiff, Rekha Chaube, seeks damages for injuries suffered in a motor vehicle collision that the defendants say never happened.

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[3]             The plaintiff said that as the taxi was backing out of its parking space, it collided with another vehicle that had apparently just entered the parking lot. However, the defendant driver testified that he saw the other vehicle and stopped in time to avoid a collision. The other vehicle and its driver remain unidentified.

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[24]         In a case where the conflicting testimony of the parties cannot be weighed against any other testimony, there is simply no basis on which I could find the plaintiff’s evidence to be more reliable than the defendant driver’s. That means that, on the critical question of whether a collision occurred, the plaintiff has failed to meet the burden of proof.

[25]         Counsel for the plaintiff argued that, even if there was no collision, the defendant driver’s own evidence shows that he was negligent and that a sudden stop was capable of causing the plaintiff’s soft tissue injuries.

[26]         The theory of a sudden, hard stop without a collision does not accord with anyone’s evidence. The plaintiff was adamant that there was a collision that she both felt and heard. The defendant driver agreed that his stop was “quick” and was necessary to avoid a collision, but did not agree that he had to “slam on the brakes”. He said he had travelled only a very short distance at a very slow speed.

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[32]         I repeat that the plaintiff has the burden of proving that the defendant driver did not meet the applicable standard of care. I find that she has failed to satisfy that burden of proof and her action must be dismissed with costs.

The text of the full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/14/2017BCSC1415.htm

Court allows jury to draw adverse inference for plaintiff failure to call lay witness

In reasons released today, the court in Jin v. Spurrel, 2017 BCSC 1256, agreed with the defence and instructed the jury that they may draw an adverse inference based on the plaintiff's failure to call a lay witness who observed him both before and after the accident.  Mr. Justice Funt said:

[1]             Defence counsel seeks to have the jury instructed by the Court with respect to drawing an adverse inference as a result of the plaintiff not calling Ms. Feng Jian Zhang as his witness. Ms. Zhang is the sister-in-law of the plaintiff’s wife.

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[3]             The plaintiff’s wife testified that she and Ms. Zhang were close and that in 2014, when she was residing in New Westminster, she would see Ms. Zhang “very many times”. Ms. Zhang would also have seen the plaintiff although less often.

[4]             There is also in evidence surveillance video which a reasonable juror may view as showing that the plaintiff does not suffer from a mental injury and he did not seem to have physical limitations.

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[10]         In my view, in the context of the claimed mental injury and the video surveillance, Ms. Zhang’s evidence would be “superior” to that of the plaintiff or of his wife who have a direct or indirect financial self-interest in the outcome of the litigation. It would also be superior to that of Mr. Qiu who only saw the plaintiff on three occasions. Ms. Zhang would have observed the plaintiff on many occasions and may have been able to testify as to whether the plaintiff, as he was shown in the video surveillance, was exceptional, typical, or otherwise.

[11]         In the circumstances, I am satisfied that a reasonable juror could draw the inference sought. I will instruct the jury with respect to the possibility of drawing an adverse inference.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1256.htm

 

Court criticizes ICBC for "ticking time bomb" settlement offer

In reasons for judgment posted this week, the court in Deol v. Sheikh, 2017 BCSC 1343, declined to award the defence its costs despite the fact they had substantially beaten their formal offer to settle.  In Deol, the defence made a formal offer to settle on the Thursday before trial in the amount of $450,000 (with the offer expiring at the end of the next day).  The plaintiff rejected the offer and was awarded $334,000 at trial.  In declining to award the defence its costs, Madam Justice Griffin described the defence offer as a "ticking time bomb" and held that the offer was not one the plaintiff should reasonably have accepted:

[12]         The plaintiff is unlike the insurer who was on the defence side of the case. The insurer is a serial litigant that has institutional knowledge about the risks of trial and the legal and evidentiary issues that are common in these kinds of cases.

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[14]         In my view, it is unreasonable to expect a plaintiff suffering from this kind of medical condition to be able to make a reasoned, confident decision about an offer to settle in a high-stress situation on the eve of trial in the limited time of one day. The fact she earlier made a counter-offer within a day proves only that with her lawyer’s help she had the ability to react to earlier offers, but does not prove that she had time to react reasonably to the Offer made on June 2. In short, the earlier exchange of offers does not prove that she had reasonable time to consider the Offer made on June 2.

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[16]         This case was dealing with a plaintiff who had a serious claim with long-term repercussions for her. When receiving a settlement offer, she would need the necessary time appropriate to someone with her injuries in order to reflect on what might be in her best interests. To penalize her by depriving her of costs or awarding costs to the defendants for not making a split-second decision about something so important to her future would, in my view, be unfair.

[17]         While the possibility of an unfavourable costs award should encourage settlements, the offer to settle rule is not intended to be a tool to impose high stakes last-minute pressure on an injured litigant.

[18]         The accident occurred in 2012, four years before trial. There was plenty of time for the defendants to make a reasonable offer in a way that would allow the plaintiff enough time to reflect on it and seriously consider it objectively.

[19]         I conclude that the plaintiff’s decision not to accept a ticking time bomb of a settlement offer delivered on the Thursday before the start of trial and open for one day only was not unreasonable.

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/13/2017BCSC1343.htm

 

Court rejects argument that it consider "cultural bias" in assessment of damages for aboriginal plaintiff

In reasons for judgment released yesterday, the court in Jacobs v. Basil, 2017 BCSC 1339, rejected plaintiff's counsel's argument that the court should take into account "cultural bias" in assessing the damages sustained by an aboriginal plaintiff in a motor vehicle case.  In considering the novel argument Mr. Justice Abrioux wrote:

[160]     The plaintiff made an extensive written submission that the court should consider “cultural bias” factors in its assessment of the damages. In particular it was submitted that:

cultural bias “needs to be considered in not only assessing this evidence, but also awarding compensation to the plaintiff for his injuries and the consequences of these Accidents”.

[161]     This portion of the plaintiff’s written submission then considers in some detail authorities that have reviewed this issue in a criminal law context such as R. v. Williams, 1998 CanLII 782 (SCC), [1998] 1 S.C.R. 1128, and R. v. Gladue 1999 CanLII 679 (SCC), [1999] 1 S.C.R. 688, amongst others.

[162]     In oral submissions, Mr. Jacobs’ counsel retreated significantly from the breadth of this submission. His argument appeared to finally rest with the proposition that if the plaintiff’s cultural background could be causally related to a specific head of damage then the court should take that into account in assessing those particular damages.

[163]     At no point did I understand the defendants’ position to be what was implied in the plaintiff’s submission, that because he was of indigenous heritage the Court should conclude that as part of his original position he was susceptible to a life of alcoholism or other forms of abuse which would likely affect his income earning capacity or things of the like.

[164]     Rather, the defendants properly conceded, in my view, that if the plaintiff’s cultural background did impact upon a specific head of damages, as it related to him, then the Court could take that into account.

[165]     As I will describe below, the plaintiff’s indigenous background is specifically addressed by Ms. Chisolm in her cost of future care report in relation to one of the items she recommends for Mr. Jacobs being a case worker.

[166]     Apart from that I do not consider the “cultural bias” argument to be appropriate in the assessment of damages in this case.

The full judgment can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/13/2017BCSC1339.htm

Court finds defendant driver 100% liable for turning left into overtaking motorcyclist

In reasons for judgment released last week, the court in Ratelle v. Barton, 2017 BCSC 1262, found the defendant driver 100% at fault for a collision with a motorcycle.  In Ratelle, the plaintiff was riding his motorcycle on the sea-to-sky highway and attempted to overtake and pass the defendant driver when the defendant suddenly turned left to exit the highway, hitting the plaintiff causing a fairly serious crash.  In finding the defendant wholly at fault Madam Justice Maisonville said:

[143]     I find that the defendant is 100 percent at fault for the accident.  Had the defendant checked his mirrors during the drive, signaled his intention to turn left by putting on his turn indicator or shoulder checked to determine that it was clear and safe to pass, in compliance with s. 165 and 170 of the Motor Vehicle Act, this accident would not have happened.  The defendant failed to demonstrate due care and attention.  The plaintiff had followed the defendant’s vehicle at a safe distance and initiated a legal pass at a dotted line when it was safe to do so. 

[144]     I accept all three witnesses who testified that Heliport Road can be referred to as a driveway which turns to gravel just shortly after the entrance and the fact that there is no street sign makes it completely dissimilar from a typical intersection.

[145]     I find the defendant was driving without due care and attention and without reasonable consideration for others on the highway, in breach of s. 144 of the Motor Vehicle Act, considering that the motorcycles were there to be seen.

[146]     Section 165(2)(a) of the Motor Vehicle Act as well obliges the defendant to bring his vehicle to the centre line, separating his lane of traffic from oncoming traffic before commencing his left turn.  Instead, the defendant testified that his vehicle was in the centre of the lane before he commenced his turn, and indeed the plaintiff and Mr. Martinello gave evidence that it was near to the right shoulder of the lane.

[147]     I find that the defendant did not activate his turn signal and failed to, otherwise, indicate his intention to turn left.  Instead, he was manoeuvring to the right before beginning with a left turn.  He also failed to perform a shoulder check.  He failed to pay due care and attention to check the traffic behind him, instead, assuming he was alone on the road.  The defendant failed to properly check his mirrors, if at all.  Those motorcycles were there to be seen for quite a way as they travelled before the accident.  

[148]     As a consequence of his own negligence, the defendant was unaware of the presence of the two motorcyclists behind him and he failed to clearly indicate his intention to turn.  I find that the defendant was in the best position to see the plaintiff intending to pass his vehicle but by not having adequately checked his mirrors or performed shoulder check, he failed to notice the motorcyclists: see Bathgate at para. 87.

The full judgment can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1262.htm

Special Costs awarded against ICBC for "abuse of process" in filing inconsistent pleadings

In reasons for judgment released this week, the court in Glover v. Leakey, 2017 BCSC 1287, awarded special costs against ICBC due to the filing of inconsistent pleadings in two separate actions.  In Glover, the defence denied liability and proceeded to a jury trial where the plaintiff's case was dismissed.  However, during the trial the plaintiff discovered that the defendant had previously admitted liability for the same accident in a different proceeding, and argued that this amounted to an abuse of process.  The trial judge then declared a mistrial before judgment was entered.  The plaintiff subsequently sought special costs.  In awarding special costs Madam Justice Gropper said:

[42]         I found that the inconsistent pleading by the defendant was an abuse of process because the principles such as judicial economy, consistency, finality and the integrity of the administration of justice were violated. The court cannot condone such conduct.

[43]         Abuse of process can be a basis for special costs. I find that in this case, the conduct of the defendant is of the type from which the court wants to disassociate itself, referring to Fullerton.

[44]         The defendant’s arguments about the merits of its position on the application and that special costs should only be for the application only, in my view, address the circumstances too narrowly. The plaintiff only discovered the inconsistent pleadings days as the jury trial was about to proceed; it was scheduled for 12 days; the jury panel had been summonsed; witnesses were on their way to or in Vernon to give evidence; expert witnesses were also arranged to be examined by video or in person; and the defendant’s counsel had threatened to apply for a mistrial if the inconsistent pleadings were raised before the trial judge or the jury. The application was made while the jury trial was underway. 

[45]         The repercussions of the abuse of process were wide spread and of significant expense to the plaintiff, who had marshalled all of her evidence. The defendant’s narrow approach fails to recognize that his conduct was not confined to the hearing of the application only; it went well beyond that.

[46]         Referring to the principles distilled in Westsea, I am satisfied that in awarding special costs in these unique circumstances meets the test of restraint but addresses the full impact of the defendant’s conduct; there are exceptional circumstances that justify such an order; the inconsistent positions on liability as between this action and the Yeomans’ action is reprehensible in and of itself, and amounts to an abuse of process; and the award of special costs in this action cannot be characterized as a “bonus” or further compensation for the plaintiff’s success on the application. 

[47]         The plaintiff is entitled to special costs arising from my finding that the conduct of the defendant was an abuse of process, including the costs of preparation and attendance at trial, as well as special cost of this application. The assessment of special costs is postponed until the defendant has exhausted all avenues of appeal.

The full judgment can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/12/2017BCSC1287.htm

Court of Appeal upholds defence jury notice in case with 28 medical witnesses

In reasons for judgment released this week, the Court of Appeal in Donaldson v. Dorworth, 2017 BCCA 236, dismissed the plaintiff's appeal of the trial judge's decision to uphold the defence jury notice.  The plaintiff argued that the case was too complex for the jury given 16 medical witnesses were expected to testify on factual matters, and another 12 on matters requiring opinion evidence.  In dismissing the plaintiff's appeal the court said:

[12]        I agree that this is a close case, but in my view the chambers judge made a decision that was open to him on the record before him. I can see no reviewable error and would not give effect to this ground of appeal.

[13]        On the second issue, the case management judge concluded that the issues would require a prolonged examination of documents and a scientific examination within the meaning of the sub-rule, but rejected the argument that the examination of these documents and expert reports could not be made conveniently with a jury.

[14]        On this appeal, the appellant has not identified an error of principle in the decision of the case management judge. Her main argument is that the judge gave no weight, or no sufficient weight, to factors relevant to the application to strike. These factors may be summarized as the length of trial, the number of expert witnesses, the number of medical fact witnesses, the liability dispute and the complexity of the expert evidence, particularly in relation to the appellant’s medical condition.

...

[21]        In my view, the case management judge in the case at bar considered the factors that were relevant to the disposition of this application and did not take into account any irrelevant factors. He did not make an error of principle but rather came to a decision that was open to him. I can see no reviewable error in his judgment. I would dismiss this appeal.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/ca/17/02/2017BCCA0236.htm

Court says expert evidence not required to establish liability

In reasons for judgment released today, the court in Truax v. Hryb, 2017 BCSC 1052, made some helpful comments on the issue of the necessity of calling expert evidence.  In Truax, the defence argued that the plaintiff had failed to establish liability for the crash because he had failed to call a collision reconstruction expert.  Mr. Justice Dley dismissed this argument saying:

[20]         The defence argues that the failure by the plaintiff to introduce engineering evidence of the collision is “telling” and that an inference should be drawn against Mr. Truax. I agree that the absence of engineering evidence is telling - there is no need to call such expert evidence when common sense prevails.

[21]         Litigation has become a costly venture; oftentimes unnecessarily so. Litigants are far too quick to secure expert testimony when it is not required. Perhaps that is out of an abundance of caution and concern that the absence of expert evidence will be a failing of counsel.

[22]         Each case should be considered on its unique circumstances. It is trite to say that it is not necessary to call expert evidence on each issue. Expert testimony should be restricted to those matters where it would actually assist the court because the evidence is so specialized, scientific or complex. Expert evidence should not be viewed as a default or automatic step in litigation strategy.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/10/2017BCSC1052.htm

Court discharges jury due to "improper" closing submissions of plaintiff's counsel

In reasons released last week, the court in Leaf v. Newton, 2017 BCSC 968, discharged the jury after hearing four weeks of evidence in a medical malpractice case due to the "improper" and "misleading" statements made by plaintiff's counsel during closing argument.  Madam Justice Wedge said:

[1]            THE COURT:  The defendants in this medical malpractice trial have brought an application asking that I discharge the jury and, under R. 12-6(12), continue the trial by judge alone.

[2]            The basis for this application is the closing address made by counsel for the plaintiff at the conclusion of this four-week trial. The defendants say the cumulative effect of the numerous alleged improper submissions cannot be rectified by cautions to the jury. They submit any attempts to rectify the transgressions will only magnify them in the minds of the jury members and enhance their prejudicial effect. Moreover, they say instructions to the jury to disregard submissions of counsel for the plaintiff could also prejudice the plaintiff in the eyes of the jury.

[3]            Counsel for the plaintiff, not surprisingly, vigorously opposes this application. It is the plaintiff who sought a jury trial in this case, and her right to do so cannot be negated except in the most extraordinary of circumstances. Plaintiff’s counsel says this is not one of them. He correctly notes that there is a very heavy burden on the defendants in this case to convince the court that the jury ought to be discharged.

...

[23]        Plaintiff’s counsel first of all revealed to the jury the terms of the arrangement between the plaintiff and the BCAS that resulted in them being released from the lawsuit. He told the jury that the paramedics were allowed out of the action “without paying a dime to the plaintiff” because in his opinion there was no case against the paramedics. He submitted further that blaming the paramedics was a “red herring,” part of the “fog” created in the case, clearly meaning “fog” created by the defendants. He submitted further that he, as counsel, was not in the business of suing people when there is no case against them.

...

[36]        Plaintiff’s counsel went on to tell the jury that the “but for” test for causation was also known as the “so what” test, apparently attempting to downplay the test the plaintiff must meet as a matter of law. He also denigrated the expert evidence on causation, quoting Bob Dylan’s line “You don’t need to be a weatherman to know which way the wind is blowing.” He did not explain to the jury how that could be so, given that they have no expertise in neurology or emergency medicine.

...

[41]        Plaintiff’s counsel repeatedly told the jury to cut through the fog, implying that much of the evidence called by the defendants was an attempt to obscure the truth. He appealed to the jury to decide the case on the basis of their sense of justice. He stated that people have a “sense of smell and of taste,” and that similarly the jury had a sense of justice such that they would remedy the wrong done to the plaintiff by the defendant.

[42]        Plaintiff’s counsel expressed his personal opinion that the plaintiff’s family were decent, honest people whom the jury must believe were telling the truth. He also expressed his opinion this was an honourable family who did not want the plaintiff to be a victim of negligence and did not want to bring a lawsuit against the defendants, hence, the decision to release the paramedics from the lawsuit without any compensation because there was no merit in the allegations against them.

...

[49]        I have no doubt that plaintiff’s counsel was doing all he could to advance the plaintiff’s case, a tragic one, before the jury. Nevertheless, his advocacy in closing crossed the permissible line in too many respects to rectify.

[50]        I have very reluctantly concluded that I have no alternative but to discharge the jury, despite the fact that they have heard four weeks of evidence in this trial.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0968.htm

Court denies defence request for IME with Vocational Psychologist as previous IME held with Psychiatrist

In reasons for judgment released last week, the court in Baxter v. Shelton, 2017 BCSC 953 denied the defence request for an IME with a Vocational Psychologist due to the defence having a previous IME with a defence Psychiatrist (from whom they had no ordered a report).  Master Keighley said:

[6]             ...counsel for the defence determined to have a vocational rehabilitation assessment done and scheduled an appointment for March 24, 2017, before Dr. Colleen Quee Newell, a vocational rehabilitation consultant.  Plaintiff's counsel took objection to the plaintiff's attendance at that appointment and indicated in any event that the plaintiff was going to be away at the time of that appointment. 

[7]             It appears that another appointment has now been arranged but with a different expert, a Dr. Dennis Magrega, who is an expert in vocational psychology, and his assistant Kim Eyrl.  That appointment is scheduled for April 5, 2017, at 9:00 a.m. at the offices of IMA Solutions in Vancouver.

...

[16]         Now, here we do not know specifically what issues Dr. Axler dealt with during the examination.  We know what he was asked to do.  We do not have a report.  There is nothing in the material to suggest to me that there is some issue which has arisen since the time that referral was made which could not have been dealt with at the time of that examination.

[17]         It is difficult in circumstances where a report of an expert with an overlapping expertise has not been produced to make a determination as to whether that subsequent examination is required for the purpose of levelling the playing field or addressing some issue which could not have been raised at the time of the original examination.  The onus is on the defendant to establish those issues.  I am not satisfied on this application that the defendant has done so.

[18]         The application is dismissed.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0953.htm

Court rules that voluntary attendance at IME does not constitute a "first examination" under Rule 7-6

In reasons for judgment released today, the court in Kenny v. Bateman, 2017 BCSC 900, addressed the issue of whether an IME was a "second IME" under Rule 7-6 given that the plaintiff had voluntarily attended a previous IME.  The court concluded that the second IME was not a "second IME" for the purposes of the Rule.  Mr. Justice Blok said:

[40]         Voluntary attendance at a medical examination does not constitute a first examination under the Rule: Teichroab v. Poyner, 2008 BCSC 1130 at para. 24 [Teichroab].

[41]         In contrast, the express mention of Rule 7-6 in the correspondence between counsel lends support for the plaintiff’s argument that the IME by Dr. Russell must be considered a Rule 7-6 examination.

[42]         The correspondence between counsel leaves the exact nature of the examination unclear.  There is support for both views.  I conclude, however, that the defendant’s argument is the stronger one because the Rule refers to an order being made,  a point mentioned by Barrow J. in Teichroab, where the former iteration of the Rule (Rule 30) was at issue:

[24] In my view, the wording of the Rule and the weight of authority supports the conclusion that the “further examination” contemplated by Rule 30(2) means an examination in addition to one ordered under Rule 30(1).  To the extent that is so, there can be no question but that the examination ordered by the master was a first examination for purposes of the Rule.  The examination carried out by Dr. Laidlow was not ordered under Rule 30(1).

[Emphasis added.]

[43]         In the present case the examination by Dr. Russell was not ordered by the Court, there was no express agreement or reference to the examination taking place as if there were an order from the Court, and there was no mention of the examination constituting a first examination under Rule 7-6.  The absence of that type of language distinguishes this case from Stene v. Echols, 2015 BCSC 1063 [Stene] and Stocker v. Osei-Appiah, 2015 BCSC 2312, both cited by the plaintiff.  The mere mention of the Rule in the correspondence was, in my view, not enough.

[44]         Accordingly, I conclude that the application for a neuropsychological examination of the plaintiff by Dr. Lysak was a first examination under the Rule.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/09/2017BCSC0900.htm

Supreme Court of Canada says “recognizable psychiatric illness” not required to compensate for mental injuries

In a ground-breaking decision released today, the Supreme Court of Canada in Saadati v. Moorhead, 2017 SCC 28, overturned the BC Court of Appeal and held that the finding of legally compensable mental injury need not rest, in whole or in part, on the claimant proving a recognized psychiatric injury.  The court held:

[13]                          ...the Court must answer the narrow question of whether it is strictly necessary, in order to support a finding of legally compensable mental injury, for a claimant to adduce expert evidence or other proof of a recognized psychiatric illness.

...

[23]                          ... Canadian negligence law recognizes that a duty exists at common law to take reasonable care to avoid causing foreseeable mental injury, and that this cause of action protects a right to be free from negligent interference with one’s mental health. That right is grounded in the simple truth that a person’s mental health — like a person’s physical integrity or property, injury to which is also compensable in negligence law — is an essential means by which that person chooses to live life and pursue goals (A. Ripstein, Private Wrongs (2016), at pp. 87 and 252-53). And, where mental injury is negligently inflicted, a person’s autonomy to make those choices is undeniably impaired, sometimes to an even greater degree than the impairment which follows a serious physical injury (Bourhill v. Young, [1943] A.C. 92 (H.L.), at p. 103; Toronto Railway, at p. 276). To put the point more starkly, “[t]he loss of our mental health is a more fundamental violation of our sense of self than the loss of a finger” (Stevens, at p. 55).

...

[34]                          The view that a recognizable psychiatric illness requirement is necessary to prevent indeterminate liability, advanced before us by the respondents and the Insurance Bureau of Canada, is similarly untenable...

...

[35]                          In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:

It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .

Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”

[36]                          It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410).  I would not endorse it.

[37]                          None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent. Further, and as Mustapha makes clear, mental injury is not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more — that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears” that come with living in civil society (Mustapha, at para. 9). To be clear, this does not denote distinct legal treatment of mental injury relative to physical injury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as a recognized psychiatric illness).

[38]                          Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.

The full decision can be found here: https://scc-csc.lexum.com/scc-csc/scc-csc/en/item/16664/index.do

Court rejects defence argument that plaintiff contributorily negligent for failing to wear seatbelt

In reasons for judgment released this week, the court in Ackermann v. Pandher, 2017 BCSC 880, refused to find the plaintiff contributorily negligent for failing to wear his seatbelt in circumstances where the plaintiff injured his wrist in a car accident (resulting in surgery and the insertion of metal plates into his wrist).  The defence argued the plaintiff would not have suffered the wrist injury had he been wearing his seatbelt.  The court rejected this argument, with Mr. Justice Schultes saying:

[105]     The defendants’ counsel submits that Mr. Ackermann should be assigned at least 25% fault because of his failure to wear a seatbelt.

...

[108]     On the question of what role wearing his seatbelt could have played in preventing Mr. Ackermann’s injuries, the defendants’ counsel submits that, despite the subjective impressions of the occupants, this was not such an extreme collision that wearing it would have been rendered useless. It was a side-swipe rather than head on collision; there was no major intrusion into the cabin area, and none where Mr. Ackermann was sitting; the occupants were able to leave the truck themselves; and Mr. Ackermann’s other injuries were minor and healed soon after.

[109]     In particular, the defendants resist the suggestion that proof of the ability of the seatbelt to prevent or reduce the injury that he suffered required expert evidence on their part...

[122]     ...Where I conclude that the defendants fall short is my ability to be satisfied on a balance of probabilities that his wrist injury would not have occurred, or not been as severe. We do not know, because Mr. Ackermann could not describe it, where in the course of the accident his wrist was injured. We know, because it was Ms. Martens’ evidence and the basis of her injury claim, that some part of his body struck her shoulder, but no specific probable mechanism of injury to him emerges. And balanced against the theory that it occurred due to his ejection from his position is his evidence that he bent down and covered his head before impact, which adds a reasonable possibility that his wrist was injured when he was still in a position to which a seatbelt would have confined him. I think a resolution of this question to the required standard would have required some evidence of the post-accident dynamics of a person in Mr. Ackermann’s location and bodily position, with and without the seatbelt, and an attempt to link his wrist injury with his likely route of travel to his resting position.

[123]     On the current evidence I conclude that the defendants have not met their burden and I am therefore unable to attribute fault to Mr. Ackermann for his injuries to any degree.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/08/2017BCSC0880.htm