Court refuses defence application for IME with "unnamed clinician with unknown expertise"

In reasons for judgment released this week, the court in Benoit v. Banfield, 2017 BCSC 2237, refused the defence application that the plaintiff attend an IME for "genetic assessment".  The court said:

[1]             In this action, the plaintiff, Danielle Nicole Benoit, by her litigation guardian, claims damages for brain injuries suffered in a fall on or about April 9, 1994 from an exterior staircase on property belonging to the defendant Margaret Jean Banfield.

[2]             At the time of the fall, the plaintiff was three and a half years old.  She claims to have suffered a traumatic brain injury with psychological/psychiatric behavioural consequences, including depression and a significant impairment of her cognitive abilities.

...

[5]             The defendant, City of Surrey, applies pursuant to Rule 7-6(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, for an order that the plaintiff will attend for genetic assessment at the medical genetics department of the BC Children's Hospital at a date and a time to be agreed between the plaintiff and the applicant, and no later than August 31, 2012.

...

[59]         In my view, the issue of whether the plaintiff suffers from a pre-existing congenital condition from a genetic abnormality is not adequately raised on any of the pleadings in this case so as to warrant an order that she submit to genetic testing.  There is no extant pleading of a pre-existing congenital condition by the applicant, and the pleading by the defendant Margaret Banfield is no more than a bare assertion that the plaintiff suffered injury, loss or damage attributable to congenital defects.  This is a bare allegation boilerplate form.

[60]         Furthermore, the defendant has failed to identify the qualified medical practitioner to conduct testing.  The plaintiff has aptly described the application at para. 35 of her written submissions where she states that:

The applicant is proposing that an unnamed clinician with unknown expertise will provide a list of unknown diagnostic considerations and the testing recommendations for a test be conducted and interpreted by unknown consultants.

[61]         Having regard to the importance of a qualified practitioner in the field of genetics undertaking the design and supervision of the genetic testing contemplated in this case, in my view the plaintiff is entitled to know the identity of the person who will conduct that testing and have an opportunity to consider their qualifications before she is compelled to submit to tests which have the potential to result in a significant invasion of privacy.  I say this because genetic testing involves an examination of the test person's genetic composition and may involve the identification of a wide range of medical conditions.

...

[64]         Without information identifying the medical practitioner who will conduct the test, and information describing the scope of the testing that expert proposes to perform, and on the current state of the pleadings, I am not persuaded that there is any sound basis for the court to exercise its discretion in favour of the defendant Surrey.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/12/22/2012BCSC2237.htm

 

Court refuses to bar surveillance of plaintiff attending at IME; says it is a "legal discovery tool"

In reasons for judgment released this week, the court in Marques v. Stefanov, 2016 BCSC 2589, refused a plaintiff's application for a condition barring surveillance on his attendance at an IME.  The court refused to impose a blanket condition against surveillance of the plaintiff saying it was an "otherwise legal discovery tool".  Madam Justice Dorgan said:

[1]             THE COURT:  The application in this motor vehicle accident case concerns an independent medical examination of the plaintiff sought by the defendant.

...

[6]             The condition the plaintiff seeks to impose as a condition of attendance, which is not agreed to, concerns surveillance.  The plaintiff asserts that it would be appropriate for the court to order that the defendant not be entitled or not be able to surveil the plaintiff as he travels to and from the independent medical examination appointment.  It is agreed between the parties that there will be no surveillance of the plaintiff during the course of the medical examination.

...

[18]         Without more, and with all due respect, I do not consider myself bound by these statements in respect of surveillance.  To impose the general conditions sought by the plaintiff would, in my view, unduly restrict the defendants' right of discovery without compelling evidence of why it would be reasonable to do so and why it would be required and necessary to do so in order to achieve parity between the parties.

[19]         Such a general “rule”, if imposed, would, in a motor vehicle case, limit a defendant's ability to surveil a plaintiff where, for example, the plaintiff is compelled by a subpoena to attend court.  It could be in an unrelated case, but compelled nonetheless to attend court in order to provide evidence.

[20]         That, in my view, is a restriction which ought to be avoided unless the evidence and the arguments convince a court in the exercise of its discretion that such a restriction is necessary to achieve parity between the parties.  I know that Mr. Collins, during argument, suggested that a plaintiff could be surveilled at the courthouse and indeed Mr. Collins points out that within the courthouse itself there are signs to indicate that surveillance is in place.  That, in my view, is different than having a defendant in a case like this conduct surveillance.  A defendant would not be able to surveil a party inside the courthouse.  The surveillance signs Mr. Collins refers to are signs to indicate security surveillance is in place.

[21]         In my view, the imposition of a broad, all‑encompassing restriction, as is sought here, of an otherwise legal discovery tool should be avoided.  Such restriction, if any, should be imposed by a court exercising discretion judicially, on evidence, which would lead the court to conclude that the restriction was necessary in order to achieve parity between the parties, and is therefore a reasonable restriction of an otherwise legal discovery tool.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/16/25/2016BCSC2589.htm

 

Court finds defence Orthopedic Surgeon Report “of little assistance” as expert did not actually examine plaintiff, but only reviewed clinical records

In reasons for judgment released last week, the court in Petrovic v. Stetsko, 2017 BCSC 741, criticized the medical-legal report of the defence Orthopedic Surgeon in circumstances where the expert did not actually examine the plaintiff.  Madam Justice J. A. Power wrote:

[34]         The defence called Dr. Paul Marks, an orthopedic surgeon from Toronto, Ontario.  Dr. Marks’ report was a response report and is entitled “Medical File Review”.  As the title suggests, Dr. Marks did not medically examine Mr. Petrovic.  Instead he simply reviewed the medical file and then provided an opinion.

[35]         Dr. Marks is of the opinion that Mr. Petrovic suffered simply soft tissue strains as a result of the accident which should have resolved within 6-12 weeks under normal biological healing parameters.  Dr. Marks agrees with Dr. Reynolds that it is highly unlikely that the plaintiff’s symptom would be permanent.

...

[39]         I have further determined that Dr. Marks’ evidence is entitled to little weight for the reasons outlined by Parrett J. in Preston v. Kontzamanis, 2015 BCSC 2219 at paras. 127 to 138.

[40]         As noted in the plaintiff’s argument, the defence did not at any point seek an Independent Medical Assessment pursuant to the Rules or request the plaintiff to submit to one voluntarily.  I am of the view that Dr. Marks’ evidence is of little assistance to the court.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0741.htm

Plaintiff awarded $80,000 in non-pecuniary damages for fractured leg

In reasons for judgment released last week, the court in Sohal v. Singh, 2017 BCSC 734, awarded the plaintiff $80,000 in non-pecuniary damages following a car accident in which she suffered a fractured patella.  Mr. Justice Skolrood wrote:

[3]             The plaintiff was 47 years old at the time of the accident and 53 years old at the time of trial. She has been a widow since 2001 and has two children, a daughter currently 25 years old and a son currently 21 years old.

[4]             The plaintiff lives in New Westminster and both of her children currently live with her while they attend university.

...

[13]         The plaintiff described the impact as feeling like she had been struck in the right knee by a hammer. It was subsequently determined that she had fractured her patella. She also felt immediate tightness in her neck and shoulders.

...

[34]         The plaintiff called two treating physicians to give evidence. Dr. Darius Viskontas is an orthopaedic surgeon who first saw the plaintiff on December 16, 2011 on referral from Royal Columbian Hospital. At that time, he diagnosed her with a fractured right patella, based on x-rays that had been done, and he prescribed her a brace. Thereafter, Dr. Viskontas continued to see the plaintiff periodically up until May 2013. Over that period of time, her patellar fracture healed well but she continued to complain of pain in the knee and leg.

...

[52]         In my view, the plaintiff’s injuries and ongoing complaints, as well as the impacts on her, most closely align with the facts of the authorities that she relies on rather than those advanced by the defendant. Considering those authorities and the principles emanating from Stapley, I find that a reasonable award of non-pecuniary damages is $80,000.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0734.htm

Plaintiff who completed half-marathon after accident awarded $110,000 in non-pecuniary damages for soft-tissue injuries and headaches

In reasons for judgment released last week, the court in Herman v. Paley, 2017 BCSC 728, awarded the plaintiff $110,000 in non-pecuniary damages following a rear-end collision.  Mr. Justice Greyell wrote:

[6]             As stated, the plaintiff was sitting in the passenger seat of her friend’s vehicle when it was rear-ended while stopped. Ms. Herman testified she was not expecting the impact. She said that prior to the impact she was looking to her right. On impact she said her upper body was “jerked” forward and then back by the shoulder seat belt she was wearing.

...

[8]             Ms. Herman is 40 years old and currently resides in Penticton with her husband and two children, Hannah, aged 12 and William, aged nine. Her husband is a clinical pharmacist at Penticton Regional Hospital.

...

[94]         Ms. Herman’s injury occurred just as she was about to commence her goal of becoming a full-time regular perinatal nurse. The evidence established she was passionate about pursuing her career and would have done so until retirement. She may be able to work to retirement with the assistance of regular rhizotomy injections to control her pain but not at a level close to her plans absent injury from the Accident. Before the Accident, Ms. Herman was a fit, active person who enjoyed outdoor activities with her husband and young family, friends and relatives. These are activities she can no longer enjoy, much to her loss and that of her family members. She is now a bystander to her families activities rather than a participant. She can no longer pursue the type of nursing career she had hoped for. She has suffered a significant injury which will require reduced work hours and injections to control her pain for the rest of her life. Her pain is significant enough that she cannot work more than two continuous 12 hour shifts. Even when she works two consecutive such shifts she is in pain the following day.

[95]         The defendant takes umbrage at the fact the plaintiff trained for and ran (walked) a half marathon in 2015. I view this attempt, which was undertaken with training assistance from her care givers at the time, not as evidence the plaintiff was returning to her former activities but as a stoic effort by Ms. Herman to try to get back to the pre-accident activities she enjoyed. While she completed the run/walk she learned the activity was not something she could continue to do. The fact she tried is one example of her stoicism: other examples are her efforts to work long and back-to-back shifts notwithstanding the pain she is in and her efforts to seek out other work which may be more accommodating to her injuries as demonstrated by her numerous applications for nursing positions.

[96]         After reviewing the authorities relied on by counsel I am of the view an award of $110,000 reflects a proper award for non-pecuniary loss.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0728.htm

Court denies ICBC request to remove 7-day trial from Fast Track; says "aggregate effect" applies to trial length and quantum

In reasons for judgment released this week, the court in De Jesus v. John Doe, 2017 BCSC 723, dismissed ICBC’s application to remove a 7-day trial from fast track.  In De Jesus the plaintiff had been involved in two separate car accidents which were both set to be heard together and for which the plaintiff had filed fast track on both actions.  ICBC applied to remove them from fast track in order to file a jury notice.  Master Baker rejected the defence arguments and held that the aggregate effect of the rule applies to both quantum and trial length:

[1]             THE COURT:  This is an application brought by the defence in motor vehicle accident proceedings in respect of two accidents and, as a consequence, two actions.

[7]             These actions were commenced at different times as a consequence of two accidents, as I say. At the request of the defence, a consent was given to try the matters together. They are now set for seven days. Two days after a notice of trial was taken out, Mr. Nairne, counsel with conduct of the case, designated the actions as fast track.

[9]             Mr. Kahs says, that indicated the defence intentions to have a jury and that the subsequent -- two days after the notice of trial and jury notice, I guess -- receipt of a designation that the matter is fast tracked is gamesmanship, and it is an overt attempt to avoid the jury. I do not accept that at all.

...

[12]         I emphasize that because repeatedly Mr. Kahs said, this cannot be considered fast track because it is seven days; it exceeds the three days. With respect, that is a failure in logic. There is nothing in the rule that does not, in my understanding, allow for an aggregate effect. Much today has turned on that concept. I am surprised there is not clear law on the subject. I will get to it in a second, but if counsel had agreed on six days’ trial, that would have been two fast track actions together. Two times three equals six. I would have seen nothing in that that violates the fast track intent or procedure.

[13]         You can have an aggregate effect in other areas. We all agreed to that today, that, for example, there is an aggregate effect with costs, that if you have two fast track actions heard together, you can get, and should get, two separate costs orders, or at least two separate assessments of costs that have an aggregate effect, obviously, greater than one.

[14]         You can double up on the allowable discovery without order. Because you have two actions, you are allowed, essentially, two discoveries together. That is the aggregate effect. I cannot see why that would not apply, firstly, in respect of time estimates, if it is six days, and now we are at seven. So that is hardly an egregious excess.

...

[20]         Mr. Kahs says, “Look, this extrapolates to an absurdity. You could have four trials, say four actions heard together, possibly $400,000”. Frankly, and with respect, I do not regard that as absurd. It is the obvious and logical application of the rule. If the Rules Committee and the Legislature had intended otherwise, probably they would have said so. But is that any more absurd than requiring, as a consequence, four separate trials so that a party can maintain their right in the appropriate circumstance, and possibly an advantage under the Rules, to the fast track procedure?  That would be absurd too.

[21]         The efficiencies obtained by hearing two cases or three cases together should not somehow quietly militate against a party relying upon their rights under the fast track procedure. I do not see it. Again, I said earlier, I am surprised there is not clear law on this, but there is not, and that may be because the rule is fairly clear.

...

[23]         So as a consequence of all this, the application is dismissed.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/07/2017BCSC0723.htm

 

Court finds railway company liable for collision at uncontrolled crossing

In reasons for judgment released on Tuesday, the court in Chand v. Martin, 2017 BCSC 1232, found Southern Railway liable for a collision occurring at an uncontrolled train crossing.  In Chand the court found that the railway company's employee ought to have slowed the train down prior to approaching the crossing, as the crossing lights were not functioning.  Madam Justice Russell wrote:

[1]            On April 16, 2007, the plaintiff, Mr. Treves Chand (“Mr. Chand”), was involved in a motor vehicle accident with a train owned and operated by Southern Railway of British Columbia Limited (“Southern”). The accident occurred at a railway crossing just north of the intersection of Scott Road and Larson Road (the “Scott Road Crossing” or the “Crossing”) in Surrey, BC. As a result of the accident, Mr. Chand and the vehicle’s two passengers, Mr. Kamaljit Kalyan and Mr. Rick Kumar, sustained serious injuries, with the latter’s injuries being fatal.

[2]            Mr. Chand brings this action on the basis of negligence. It is his contention that the railway crossing lights did not activate to warn those travelling northbound towards the intersection that a train was about to cross. Consequently, he maintains that Southern was negligent in maintaining the lights. In addition, he submits that, at the time of the collision, at least one of the train’s crew members was negligently carrying out their duties, raising the issue of vicarious liability.

[69]        In my view, it is self-evident that a failure to either ensure a train stops before entering a crossing where the signal lights are off, or a failure to keep a lookout, constitutes an unreasonable risk of harm which violates the requisite standard of care. Either way, I find that Mr. Cohen failed to meet the standard of care which was incumbent on him as the train’s conductor. He was the employee charged with ensuring the safety of the public by both watching for the signal lights, via the wigwags, (on his side of the train) and for observing the intersection (from his side of the train) through which the train was about to proceed. I am supported in this finding by the fact that both internal and general regulations required him to ensure that the train would not enter the Crossing in the event the signal lights that only he could observe from his side were not functioning. He failed in this regard.

...

[93]        I find that, due to Mr. Cohen’s conduct on the night in question, Southern is vicariously liable in negligence to Mr. Chand.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0660.htm

 

Court finds prior conviction for careless driving not binding in subsequent personal injury trial

In reasons for judgment released on Tuesday, the court in Chand v. Martin, 2017 BCSC 1232, held that the plaintiff's prior conviction for driving without due care and attention was not binding in his subsequent personal injury trial.  Madam Justice Russell wrote:

[84]        On June 22, 2009, Mr. Chand pleaded guilty to a charge under s. 144 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [MVA] for driving a vehicle without due care and attention. As a result, a $1,500.00 fine was imposed on him.

...

[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0660.htm

Court of Appeal upholds verdict against St. Paul’s Hospital for patient suicide attempt

In reasons for judgment released today, the Court of Appeal in Paur v. Providence Health Care, 2017 BCCA 161, upheld a verdict finding St. Paul’s Hospital negligent in a case involving an attempted suicide by a mentally ill patient.  The plaintiff in Paur was committed under the Mental Health Act at St. Paul’s Hospital after threatening to kill himself.  After being committed the plaintiff was allowed to go into a bathroom alone, and while inside attempted to hang himself from the bathroom ceiling using his gown.  The patient's life was ultimately saved but he suffered devastating brain injuries.  The Court of Appeal agreed with the trial judge that the Hospital was negligent in not taking the relatively inexpensive step of modifying the bathroom ceilings in the Psychiatric Unit to prevent patients from being able to hang themselves (which was in line with Provincial Government recommendations).  The Court of Appeal wrote:

[4]            For long and detailed reasons indexed as 2015 BCSC 1695, the trial judge dismissed the plaintiff’s claim against Dr. Pickett, the ER physician charged with his care; but found that the hospital had fallen below the applicable standard:

Given the foreseeable risk, the seriousness of the potential harm from hanging, and the relatively low burden of cost to prevent the injury, I find that [the hospital] had a duty to take reasonable steps to either ensure that the bathroom design was changed to be ligature-proof or more easily monitored in advance of suicidal patients being allowed unmonitored access to it, or to institute policies to ensure that suicidal patients could not be in the bathroom unmonitored or uninterrupted for any length of time that could allow for a hanging approaching five minutes before rescue. [At para. 251.]

After finding that ‘but for’ the unsafe environment provided to Mr. Paur, he would not have had the opportunity to hang himself, the Court ruled that the hospital was liable in negligence and as an “occupier” under the Occupiers Liability Act, R.S.B.C. 1996, c. 337 (“OLA”).

...

[70]        I agree with the trial judge that the frequency (or infrequency) of suicide attempts is no reason why reasonable steps should not be taken to prevent them occurring in a hospital where patients may be held against their will. No facility will ever be completely safe; the issue is whether it is reasonably safe given the population.

...

[74]        In summary, the risks found by the Court to be reasonably foreseeable could have been minimized in a variety of ways, not only by having a ligature-proof ceiling in the Comox Unit bathroom. At the end of the day, the hospital had not, in the trial judge’s view, met the standard on any of these bases.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0161.htm

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries and “adjustment disorder”

In reasons for judgment released today, the court in Bivadi v. Coggans, 2017 BCSC 656, awarded the plaintiff $110,000 in non-pecuniary damages for soft-tissue injuries and adjustment disorder.  Mr. Justice Smith wrote:

[64]        The evidence supports a conclusion that the plaintiff’s pain, his associated psychological problems, and the effects of prescription medication combined to be significantly disabling for about a year after the accident. After that, there was a process of slow improvement, with symptoms still present at trial two and a half years after the accident. The medical prognosis at the date of trial was for continued improvement, but with complete recovery from pain unlikely. However, the plaintiff appears to have acquired some skills to manage his pain, with a resulting improvement in his mental state.

[65]        In Unger v. Singh, 2000 BCCA 94 [Unger], the Court of Appeal said that in cases involving primarily soft-tissue injuries with some emotional problems such as sleep disruption, nervousness or depression, the decided cases indicated a range of non-pecuniary damages awards from $35,000 to $125,000: at para. 32. Counsel for the plaintiff submitted that when adjusted to 2015 dollars, that range would be approximately $46,000 to $166,000.

[66]        In Unger, the plaintiff was involved in two motor vehicle accidents. The first caused soft-tissue injuries, psychological, and emotional problems which were largely resolved by the time of the second accident a year and a half later. The second accident caused some minor aggravation, but by the time of trial about two years after the first accident, the plaintiff had resumed most of her pre-accident activities. The Court of Appeal reduced a jury award to $90,000.

...

[68]        Having regard to the severity of the plaintiff’s initial symptoms, his substantial but far from complete improvement by the time of trial, the probability of continued symptoms in the future and the fact that the plaintiff was at risk for developing pain at some point from his pre-existing degenerative condition, I assess his non-pecuniary damages at $110,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0656.htm

Court awards $85,000 in non-pecuniary damages for soft tissue injuries

In reasons for judgment released today, the court in Harris v. Kraus, 2017 BCSC 640, awarded a 30-year-old mother of three with pre-existing depression $85,000 in non-pecuniary damages for soft tissue injuries.  Mr. Justice Betton wrote as follows:

[20]         The plaintiff says that 4.5 years post-collision she continues to suffer with constant pain and with ups and downs in her daily experience.

[21]         She argues that given her age and the significant impact on her enjoyment of life, including her role as a mother of three young children, an award of $110,000 is appropriate.

...

[73]         The plaintiff is a young mother of three who has and will continue to deal with chronic pain. It is obvious that this has affected all aspects of her life. Apparently and understandably, the most difficult part of that has been the impact on her ability to parent. Emotionally and physically she is limited in this regard.

...

[77]         Counsel have referenced numerous authorities, all of which are helpful. It is always possible to find features of other decisions that distinguish them from the facts at bar. But for the medical opinions that the plaintiff will improve, I would award an amount in the range suggested by the plaintiff. Taking into account that optimism, but recognizing the uncertainties associated with it, I award $85,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0640.htm

 

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries, headaches, and dizziness

In reasons for judgment released today, the court in Rousta v. MacKay, 2017 BCSC 644, awarded the plaintiff $110,000 in non-pecuniary damages soft-tissue injuries, headaches, and dizziness sustained in a rear-end collision.  The plaintiff in Rousta was 59 at the time of the accident and continued to experience pain at the time of trial.  In giving reasons, Mr. Justice Skolrood wrote:

[80]         The evidence establishes that the plaintiff suffered soft tissue injuries to her neck, shoulders and back as well as an injury to her right hip as a result of the accident. I accept her evidence that she still experiences pain in these areas, although I note the evidence of both Dr. Cameron and Dr. Dost that when they examined her, both in the summer of 2016, she had a full range of motion in her neck and back. A fair assessment is that these injuries will continue to cause her some pain and discomfort but are not by themselves disabling.

[81]         The evidence also establishes that the plaintiff suffered an inner ear injury with resulting visual vestibular mismatch which continues to cause her difficulty, although not to the same degree as shortly following the accident. Again referring to Dr. Cameron’s and Dr. Dost’s examinations of the plaintiff in mid-2016, both indicated normal balance and coordination.

[82]         The plaintiff has also experienced consistent headaches since the accident, and I am satisfied that they still continue to bother her, although Dr. Cameron and Dr. Barton are optimistic about improvement with better management.

...

[94]         Considering the impacts of the accident on the plaintiff, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $110,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0644.htm

Court awards plaintiff $90,000 in non-pecuniary damages for soft-tissue injuries and headaches

In reasons for judgment released today, the court in Willett v. Rose, 2017 BCSC 627, awarded the plaintiff $90,000 in non-pecuniary damages for soft-tissue injuries and headaches that resulted from a motor vehicle collission.  The plaintiff in Willett was a 51-year-old realtor who had a longstanding pre-accident history of migraines.  In making the award, Mr. Justice Smith wrote as follows:

[1]             The plaintiff was injured in a motor vehicle accident near Prince George, British Columbia on February 16, 2010. Seven years later, the plaintiff says she continues to suffer from neck pain and stiffness that in turn leads to debilitating migraine headaches. The defendant says the plaintiff had a long history of migraines before the accident and returned to her pre-accident condition within a few months. The defendant also says the plaintiff was partly responsible for the accident.

[20]         The plaintiff says she still has limited mobility and discomfort in her neck, although she can have pain free periods lasting up to a week or two. But when she has neck pain she says the pain will spread across the left side of her head or to a band across the forehead. She says she still gets headaches two or three times a month. These last a day or two if they do not develop into full migraines; but the migraines, which are more frequent than her “normal” headaches, can last up to five days. When she has a migraine, she says she needs to go to bed in a dark room with cold compresses and is sensitive to light, touch, sounds and smells.

...

[22]         The plaintiff, who is now 51, has a pre-accident history of migraines going back to her early teens. She says these were always associated with her menstrual periods and stopped when she went into menopause in 2012. She says the present migraines are both more severe and more frequent.

...

[45]         It has now been seven years since the accident. The plaintiff still experiences neck pain and stiffness as a result of the soft tissue injuries to her neck. More importantly, the neck pain is a contributing factor to serious, sometimes temporarily disabling migraines that significantly interfere with both work and recreational activities and reduce her quality of life. No improvement is anticipated in the future.

...

[48]         Considering all of the evidence and the authorities cited to me, I award non‑pecuniary damages of $90,000.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0627.htm

Court awards plaintiff non-pecuniary upper limit cap of $367,000 despite no paralysis or brain injury

In reasons for judgment released today, the court in Wilhelmson v. Dumma, 2017 BCSC 616, awarded the plaintiff the upper limit cap of $367,000 in non-pecuniary damages after suffering “catastrophic” physical injuries (but which did not involve any paralysis or brain injury).  In giving reasons for judgment Madam Justice Sharma wrote:

[168]     Ms. Wilhelmson seeks between $325,000 and $360,000 in general damages for pain and suffering. The defendant says an award of $300,000 is appropriate. There is no dispute that the controlling case law limits the maximum damages available to be $367,000 in today’s dollars.

...

[171]     ... The defendant’s position is that the upper limit for general damages (as per Andrews but converted to today’s currency) is reserved for only the most catastrophic cases, involving severe brain injury or paralysis. So while the defendant accepts Ms. Wilhelmson has suffered severe injuries, he says the upper limit is not justified in this case...

...

[180]     The defendant pointed out that the cases to which he referred where the maximum or near-maximum award was made, all deal with people suffering a different category of injury: severe brain damage that has altered people’s independence and personality. The defendant points out that the plaintiffs in the cases he cites all require near-constant supervision, unlike Ms. Wilhelmson. However, that merely distinguishes those cases rather than providing support for the defendant’s position.

...

[184]     The defendant says the “most” catastrophic injuries that justify the maximum award of damages are only those involving paralysis or severe brain injury. No case was cited to me that stated that principle and in my view, Walker J.’s comment in Sangra are inconsistent with that position.

...

[187]     Non-pecuniary damages are compensation for the intangible impacts the accident has on the plaintiff for pain, suffering and loss of enjoyment of life. The question before me is whether the pain and suffering the accident has caused Ms. Wilhelmson justifies awarding her the maximum or near maximum amount of damages.

[188]     I find that it does and I award her $367,000 in general damages.

[193]     Taking all of these factors into account, I find she is entitled to the maximum award of damages for non-pecuniary damages and I award her $367,000. The plaintiff submitted she is entitled to the maximum, but only sought $360,000 based on counsel’s understanding that the maximum was reserved for cases involving paralysis and/or severe brain injury. I do not find the case law cited to me to support that supposition and therefore the plaintiff is entitled to the maximum.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/06/2017BCSC0616.htm#_Toc479755192

Defence denied costs despite beating formal at jury trial

In reasons for judgment released today, the court in Bains v. Antle, 2017 BCSC 590, declined to award the defence costs despite beating its formal offer to settle.  In Bains, the plaintiff was awarded $37,800 by the jury at trial.  The defence had made a formal offer of $185,000 before trial.  In declining to award the defence its costs Madam Justice Power said:

[1]             After a ten-day jury trial in October 2016, the plaintiff was awarded by the jury, $37,800.00, an amount which was substantially less than what she was seeking and expected to receive at trial for chronic myofascial shoulder pain.

...

[3]             The defendants seek an order that the plaintiff have her costs up until the defendants’ first formal offer to settle and that the defendants be awarded their costs of the action thereafter with a set-off as appropriate.  The defendants argue that their formal offer of September 20, 2016 -- $185,000 of new money plus costs -- ought reasonably to have been accepted on the date it was delivered.

[9]             The defendants served a single report which was a records review report of orthopedic surgeon Dr. John Hummel.  Dr. Hummell was not called to provide expert testimony at trial.

[15]         The plaintiff argues that neither of the defendants’ formal offers to settle was reasonable to accept in all of the circumstances.  The plaintiff was confident that she had a meritorious claim for substantial damages including loss of future earning capacity.  The plaintiff argues that the defendants’ responsive reports supported her claim.  The plaintiff argues that the defendants’ rebuttal expert, Ms. Claudia Walker, alone supported a fairly large claim for costs of future care.

[16]         The plaintiff argues that she has incurred tens of thousands of dollars for disbursements and that as a result of the trial, the family is financially devastated, requiring withdrawal of money from her children’s accounts.

[17]         The defence argues that the plaintiff went to court attempting to obtain over a million dollar award for a soft tissue injury.  The plaintiff took a gamble and lost, and it is this kind of action that is driving insurance rates up.  The defendants offered over five times what the jury awarded and it was a reasonable offer that ought to have been accepted on the date it was delivered.

[25]         Although some of the plaintiff’s initial negotiating positions were clearly inflated, and were tactical in nature and in that regard overly optimistic, I agree with the plaintiff that her decision not to accept the offer tendered by the defendants before trial was a reasonable one.  The evidence available to the plaintiff at the time that the settlement offers were rejected included expert reports in respect of past wage loss, loss of future earning capacity, and cost of future care.

...

[36]         It is my view that all of the financial evidence at trial supports the fact that the plaintiff was a person of modest means.  Having already concluded that the settlement offer was not one which ought to have reasonably been accepted, it is evident that an order requiring the plaintiff to either pay the well-funded defendants’ costs, or in the alternative denying the plaintiff her costs, from September 20, 2016 onwards, would result in a pyrrhic victory and could have the effect of discouraging plaintiffs from pursuing valid claims.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0590.htm

Court awards $110,000 in non-pecuniary damages for soft-tissue injuries

In reasons for judgment released today, the court in Leach v. Jesson, 2017 BCSC 577, awarded a 50-year-old plaintiff $110,000 in non-pecuniary damages for soft-tissue injuries following a serious rear-end collision.  Mr. Justice Funt wrote:

[7]             At the time of trial, the plaintiff was 50 years old and had been married to his spouse for 24 years. They have four adult children.

[8]             For the past 25 years, the plaintiff has worked in both residential and commercial construction. In recent years, the residential construction has involved home renovations.

[24]         As a result of the Accident, the plaintiff now suffers from neck and shoulder pain, low back pain, and headaches. Initially, as the plaintiff described, he had no strength in his neck and had to support it. He now has stability in his neck but there is considerable residual pain which has plateaued.

...

[69]         Recognizing the degree of the plaintiff’s injuries and their effect on his enjoyment of work, family, and leisure activities, and the plaintiff’s age, the Court will award $110,000 as non-pecuniary damages.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0577.htm

Court awards double costs despite “defective” wording in formal offer

In reasons for judgment released today, the court in Hans v. Volvo Trucks North America Inc., 2017 BCSC 555, awarded both plaintiffs double costs for the trial following the plaintiffs’ formal offer to settle.  The defence argued that double costs should not be awarded as the formal offer was defective, in that it purported to offer to settle the claims of only one plaintiff, rather than both.  Mr. Justice Davies rejected the defence arguments and wrote:

[55]         The Volvo defendants assert that other factors exist which should result in denial of the plaintiffs’ application for double costs. The three factors relied upon are:

  1. A defect in both offers to settle in that they are made by an unspecified single plaintiff rather than both plaintiffs;

...   

[56]         Concerning the first factor the Volvo defendants submit that both plaintiffs were advancing significant claims so that it could not be objectively determined whether they intended to settle Mr. Hans’ claims, Mrs. Hans’ claims or the claims of both.

...

[64]         The reality of this litigation, at all times well known to the Volvo defendants was that liability would have to be established before either plaintiff would be entitled to any recovery. Similarly it was well known that the plaintiffs’ claims for loss of past and future income earning capacity were inter-dependent and based upon the extent of the psychological injuries suffered by Mr. Hans. This was not a case in which there could have been severance of the claims of the individual plaintiffs.

[65]         While the offers to settle were potentially ambiguous, it is, in my view obvious that the intent of both offers was to settle the entirety of the action and the claims of both plaintiffs. I am also satisfied that the Volvo defendants appreciated that fact and never had any intention of accepting either offer. The failure of the Volvo defendants to seek any clarification reinforces my view that at all times they intended to pursue an “all or nothing” approach to the litigation.

...

[69]         The plaintiffs are entitled to double costs from the Volvo defendants after the plaintiffs’ first offer to settle for $3 million dated February 2, 2015, which ought to reasonably have been accepted before the second offer to settle for $3.7 million was made on August 21, 2015. The plaintiffs are also entitled to double costs from and after August 21, 2015, by reason of their second offer to settle which similarly ought to reasonably have been accepted.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0555.htm#_Toc478719343

Court calls plaintiff's expert an "undisclosed salesman"; says evidence showed "a shocking lack of candour"

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, severely criticized the plaintiff's expert Occupational Therapist calling him an "undisclosed salesman" and saying his report showed "a shocking lack of candour".  Mr. Justice Armstrong wrote:

[179]     Mr. McNeil is an occupational therapist and certified work capacity evaluator. He and Kevin Turnbull’s opinions form the basis for Ms. Ma’s estimate for future care costs in the amount of $390,065.

...

[183]     I consider Mr. McNeil's failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour. As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue. To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time. It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

...

[199]     Overall, I have little confidence in Mr. McNeil’s opinions. He candidly acknowledged he could not measure or verify Ms. Ma’s subjective claims of disabling pain. His assessment was performed five years before trial and one-and-a-half years before Mr. Enright’s assessment. Additionally, Mr. McNeil acknowledged several shortcomings in the preparation and final content of his report.

[200]     Mr. McNeil has an unenviable record in this Court as highlighted by the authorities cited by the defendants. While those cases do not render his report unreliable, the errors in his report, the differences between his and Mr. Enright’s findings and the carelessness with which he prepared his opinion result in my finding that I can give little weight to his views.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0549.htm

Court rejects plaintiff’s evidence, finds complaints of pain due to “factitious disorder or malingering”

In reasons for judgment released today, the court in Ma v. Haniak, 2017 BCSC 549, rejected the evidence of the plaintiff and found that her complaints were as a result of either a “factitious disorder or malingering”.  Mr. Justice Armstrong wrote:

[1]             The plaintiff Yin Yin Ma (“Ms. Ma”) was in a car accident in September 2007. She was involved in two other car accidents in 2009 with her brother Hla Shwe Maung. Liability for these collisions is admitted by the defendants and the trial concerned the assessment of damages payable to both plaintiffs, each of whom contends that they suffer from incapacitating and permanent injuries.

[2]             Ms. Ma has asked the court to award her approximately $175,000 for non-pecuniary damages, $243,000 in past wage loss, $616,000 for impaired earning capacity, $409,000 in future care costs, $20,000 in housekeeping expenses and $12,000 for special damages.

...

[107]     Overall, Ms. Ma claims to be virtually incapable of any physical activity because of severe, constant and unrelenting pain at many times since the three accidents and at the time of trial.

...

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

...

[291]     The defence argues that the plaintiff is a malingerer who might have been motivated to exaggerate her claims because she has had no economic success since immigrating to Canada in the early 1990s. There is no evidence that proves her ability to earn income other than her work in very modest manual labour positions. The defendants argue that evidence of her past economic performance goes against any assertion that, but for the accident, she would have been economically successful.

...

[306]     For the reasons that follow, I am satisfied that Ms. Ma’s claims that she has experienced and continues to experience extreme levels of disabling pain throughout her entire body are unreliable and not credible. Further, although I accept that Ms. Ma suffered injuries to her neck, back and left side because of the three MVAs, I do not accept her evidence concerning the extent and duration of those symptoms. I find that the plaintiff exaggerated some of these symptoms and feigned others.

...

[325]     In addition to exaggerating her claims, I find Ms. Ma’s testimony to be reflective of her expectations that her descriptions of pain would be helpful in increasing her damages claim and augmenting for her personal financial gain. Ms. Ma conceded that she had written letters outlining her symptoms and injuries to her doctors and requested that they keep those letters to deal with ICBC. The nature of this correspondence suggests that Ms. Ma was pain focused and intent on maximizing her compensation claim rather than on following her doctors’ advice concerning active rehabilitation and recovery.

...

[331]     I find that Ms. Ma has not proven on a balance of probabilities that she suffers a chronic pain syndrome or fibromyalgia caused by the three MVAs. Based on all of the evidence, I conclude that the plaintiff claims that she suffers extremes of pain and discomfort throughout her body and which she says completely and permanently disabled her are animated by a factitious disorder or malingering.

...

[374]     Ms. Ma will have judgment for the following:

a.     non-pecuniary damages $35,000;

b.     past wage loss $10,300;

c.     special damages $3,400; and

d.     the parties will be at liberty to speak to the question of costs.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/sc/17/05/2017BCSC0549.htm

Helpful comments from the Court of Appeal on Chronic Pain

In reasons for judgment released yesterday, the BC Court of Appeal in Park v. Targonski, 2017 BCCA 134, made some very helpful comments on Chronic Pain.  The court wrote:

Chronic pain

[76]         Chronic pain is a complex disorder. Dr. Lu explained that it negatively impacts sleep, energy, mood, and motivation. The medical evidence established that Ms. Park’s chronic pain manifested itself as hypersensitized and widespread pain that developed over time from her physical injuries. The psychological component of her pain is made evident in her ongoing issues with sleep, lack of energy, anxiety, lack of motivation and depressed mood.

...

[86]         The complexity of chronic pain was acknowledged in Martin v. Nova Scotia (Workers’ Compensation Board), 2003 SCC 54, where Mr. Justice Gonthier, for the Court, wrote:

[1]        Chronic pain syndrome and related medical conditions have emerged in recent years as one of the most difficult problems facing workers’ compensation schemes in Canada and around the world. There is no authoritative definition of chronic pain. It is, however, generally considered to be pain that persists beyond the normal healing time the underlying injury or is disproportionate to such injury, and whose existence is not supported by objective findings at the site of the injury under current medical techniques. Despite this lack of objective findings, there is no doubt that chronic pain patients are suffering and in distress, and that the disability they experience is real. While there is at this time no clear explanation for chronic pain, recent work on the nervous system suggests that it may result from pathological changes in the nervous mechanisms that result in pain continuing and no-painful stimuli being perceived as painful. These changes, it is believed, may be precipitated by peripheral events, such as an accident, but may persist well beyond the normal recovery time for the precipitating event. Despite this reality, since chronic pain sufferers are impaired by a condition that cannot be supported by objective findings, they have been subjected to persistent suspicions of malingering on the part of employers, compensation officials and even physicians. …

[87]         As in Martin, the medical evidence in this case conclusively established that Ms. Park’s pain is real, even though it includes a significant psychological component, and that its ongoing nature renders her vulnerable to depression. In my view, the judge erred in rejecting the subjective component of Ms. Park’s chronic pain as not being credible when he had accepted that component of her pain as an injury that was caused by the Accident. Even rejecting her evidence, there was a substantial body of medical evidence to support the reasonableness of her reported symptoms and their effect on her motivation. This error, in my respectful view, led the judge to focus principally on the physical nature of Ms. Park’s injuries and her physical capacity to do certain tasks, while discounting the distinct but inter-related emotional and psychological components of her injury, in assessing her functional capacity.

The full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0134.htm