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.

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[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 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”).

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[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.

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[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

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.

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[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

Court of Appeal finds truck driver not responsible for single-vehicle crash, says “no negligence” proven

In reasons for judgment released last Friday, the Court of Appeal in Haynes v. Haynes, 2017 BCCA 131, overturned a trial judges finding of negligence in a single-vehicle crash.  In Haynes, the defendant lost control of his truck after it started to wobble on the highway, with it ultimately crashing and injuring his son (who was riding as a passenger).  The court said:

[1]             On a sunny afternoon in September 2012, the defendant and plaintiff (who are father and son respectively) set off in a truck towing a flat-deck trailer from Rayleigh (near Kamloops) south along the Yellowhead Highway towards a scrapyard on the Tk’emlups Indian Reserve. On the trailer they had loaded an old Bronco (from which the wheels and tires had been removed) that was strapped into place, and an old engine block placed in the cargo box of the Bronco.

[2]             The defendant drove. He is a retired city worker who had driven trucks and other equipment in the course of his employment. He holds a Class 1 driver’s license and was age 71 at the time of trial. The plaintiff, a passenger in the truck, is a professional truck driver who drives tractor-trailers as part of his employment. Both had driven the Yellowhead Highway many times. On this day, the highway surface was dry and smooth. The posted speed limit was 100 km/h.

[3]             After entering the highway, the men travelled about six to eight kilometres, in the curb lane, without incident. They reached a gentle curve to the right. The defendant testified that he felt a “wobble” and then the trailer began to “whip from side to side”. The trial judge recounted his testimony:

The truck and trailer left the travelled portion of the highway striking an asphalt barrier along the far right boundary of the highway which was the limit of the shoulder of the highway. The defendant testified that prior to the trailer whipping from side to side, he felt a gentle wobble. The defendant stated that it was the trailer that started to sway and that the whipping motion transmitted this motion to the truck. The defendant testified that the whipping motion moved both the truck and trailer at the same time. This whipping motion caused the truck and trailer to:

…[nose] off into the other lane, and I didn’t want that to happen, so I pulled it -- turned it back into the -- my lane, I guess you’d call it, the curb lane and then the next thing I know “phewt” over we go.

The defendant testified that when he first felt the motion of the trailer on the highway, the truck and trailer were in the right-hand curve on the highway. In describing the action of the truck and trailer, the defendant testified that there was oncoming traffic travelling in the opposite direction, but the truck did not go into the oncoming lane. The defendant did concede that the nose of the truck could have travelled into the fast lane as it was pointed in that direction. However, he steered the truck back into his lane.

The defendant testified that he moved back into the slow lane by turning the steering wheel, managing to straighten out the truck and trailer, but that he still felt the wobble. He testified that either the truck or trailer hit the curb and then it went over the embankment.

The defendant testified that at some point in time, he slowly applied his brakes. He was not sure if it slowed things down, but the trailer was still whipping. He was of the view that their application had no effect. The defendant did not know how fast he was travelling when he went off the road as he testified that he was not looking at the speedometer.

The defendant estimated that he had travelled a maximum of 200 yards from the time he first experienced the swaying until the truck and trailer left the road. [At paras. 20–4; emphasis added.]

[27]         In the result, I conclude with respect that the trial judge erred in fact in proceeding on the basis that the defendant did not testify that he had slowed his vehicle when it began to wobble; and in failing to engage in a proper analysis of causation. Nor did she explain how the speed of the defendant’s vehicle or how his failing to check his side mirrors caused or contributed to the mishap. Further, if an inference arose on the facts of this case that the defendant was driving too fast in all the circumstances, the judge was clearly wrong in rejecting the possibility that the mishap may have been the result of the flat tire on the trailer. She also erred in law in proceeding on the basis that the defendant violated s. 7.07(3) of the regulation and was therefore negligent as a matter of law.

The full decision can be found here:  http://www.courts.gov.bc.ca/jdb-txt/ca/17/01/2017BCCA0131.htm

Court of Appeal upholds finding that bus driver negligent for "braking too hard"

In reasons for judgment released this morning, the BC Court of Appeal in Benavides v. Insurance Corporation of British Columbia, 2017 BCCA 15, dismissed an appeal by TransLink that its bus driver had been negligent for “braking too hard” and causing the plaintiff fall and injure himself.  Writing for the court, Madam Justice Fenlon discussed the high standard of care owed by bus drivers to their passengers and said as follows:

[1]             The defendants in a personal injury action appeal a finding that a bus driver’s negligence caused the plaintiff to fall…

[3]             The incident occurred when Mr. Benavides was travelling home from a supermarket on Fraser Street, in Vancouver. One stop before he intended to disembark, Mr. Benavides rang the bell to let the driver know he wanted to get off at the next stop. He then got up from his seat and moved to the rear door, holding on to the vertical metal bar with one hand, while holding shopping bags in the other. The bus braked suddenly and without warning when it was at or just past Mr. Benavides’ intended stop. He fell and sustained soft tissue injuries to his hands, knees, back, neck and right shoulder and contusions to his chest and rib cage. The bus was crowded with passengers. Mr. Benavides, who was 76 years old at the time of trial, left the bus without reporting the incident to the driver. About one month later the event was reported to Translink by someone on behalf of Mr. Benavides.

[4]             At trial a representative of Translink testified that bus drivers are trained to slow down as they pull into regular stops rather than drive at a normal speed and then brake suddenly. He testified further that drivers are trained to do everything possible to avoid sudden stops, except when they are necessary to avoid emergency hazards.

[5]             The trial judge found that Mr. Benavides fell as a result of the driver braking abruptly at the bus stop and that the fall caused Mr. Benavides’ injuries. He awarded damages of approximately $41,000.

[19]         … In my view, there was evidence to support the judge’s inference that the bus driver braked hard in order to avoid overshooting the bus stop. That inference was not…a matter of “mere speculation”.

[20]         In summary…the findings made by the trial judge support his ultimate conclusion on liability…

The text of the full decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/00/2017BCCA0015.htm

 

Court of Appeal sets aside award for future cost of Botox treatments saying "no evidentiary foundation for the award"

In reasons for judgment released this morning, the BC Court of Appeal in Reimer v. Bischoff, 2017 BCCA 4, overturned a trial judge’s $34,000 award for future cost of Botox treatments.  In finding the Botox treatments to be not medically justified, the Court of Appeal said the following:

[26]         Included in the future cost of care award is $34,768.90 for Botox treatment…

[29]         The parties do not dispute that determining the cost of future care involves identifying medically justified and recommended treatment responding to injury caused by an accident that sustains or improves the mental or physical health of the plaintiff.

[30]         It is quite clear on the record that the judge fell into error in concluding that the cost of Botox treatment had been recommended by a medical professional. The respondent had testified that she had in the past used Botox for cosmetic reasons, and found that it provided relief from her migraines. The use of Botox to treat migraine was confirmed to her by a Dr. Donat, and the respondent testified that its use to treat migraines had been recommended to her by Dr. Donat and Dr. Buttars. Neither of those opinions was in evidence in an admissible form for their truth. The only admissible medical evidence concerning Botox was an opinion that if the other preventive treatments should become ineffective, then a trial with Botox might be recommended...

[31]         I am satisfied that there was no medical evidence before the court capable of justifying the cost of Botox treatment. Moreover, the possibility that Botox would be recommended in the future was entirely speculative…

[32]         In my view, there was no evidentiary foundation for the award of the future cost of Botox treatment and no basis on which to assume… that treatment of the migraine headaches by using Botox would ever be medically recommended for the respondent.

[33]         I would set aside the award for the future cost of Botox treatment.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/17/00/2017BCCA0004.htm

 

Court of Appeal upholds Trial Judge's Dismissal of Earning Capacity Claim

In reasons for judgment released this morning, the BC Court of Appeal dismissed a 24-year old plaintiff’s appeal concerning the trial judge’s dismissal of her claim for loss of future earning capacity.  The court said:

[17]        …Ms. Leong argues that the trial judge erred in rejecting her claim for loss of earning capacity. Ms. Leong submits that the trial judge erred in failing to follow the approach in Sinnott v. Boggs, 2007 BCCA 267. She argues that because she is a young person who has not yet established a career and has no settled pattern of employment, the quantification is broader and larger. She argues that there was evidence that she had ongoing symptoms that might possibly limit her ability to engage in vocations that would require lifting or prolonged use of her arms.

[19]        The trial judge gave comprehensive and thorough reasons on the issue of loss of earning capacity. The trial judge considered Ms. Leong’s age, and the fact that she had not settled into a career path, and that her claim should not be prejudiced by a lack of employment history. However, the trial judge concluded at para. 104 that the evidence did not “support a conclusion that there is a real and substantial possibility that the plaintiff is less capable overall from earning income in all kinds of employment, unable to work in jobs that were previously open to her, less marketable to employers, and less valuable as an employee due to her injuries”.

[21]        …in this case, there is no evidence or opinion from any of the medical experts to the effect that Ms. Leong’s conditions and symptoms reduced her earning potential. At around the trial, Ms. Leong began to look at retraining as a nurse or in a sonography program, but thought that she might have trouble lifting her arms for long periods or lifting patients. As noted, there is no medical evidence supporting this concern in terms of her ability to work.

The full text of the decision can be found here: http://www.courts.gov.bc.ca/jdb-txt/ca/16/04/2016BCCA0485.htm