ICBC Law

BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

$100,000 Non-Pecuniary Assessment For Pelvic Fractures With Lingering Pain

July 24th, 2015

Adding to this site’s archived ICBC cases assessing damages for pelvic injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry assessing damages for a pelvic fracture.

In today’s case (Ackley v. Audette) the Plaintiff pedestrian was struck by the Defendant’s vehicle after a verbal altercation.  The Plaintiff was found negligent for careless driving as was the Defendant who instigated an altercation.  The Defendant suffered pelvic fractures which posed lingering problems at the time of trial (some 5 years later).  In assessing non-pecuniary damages at $100,000 prior to the liability split Mr. Justice Skolrood provided the following reasons:

[146]     There is no question that Mr. Ackley suffered significant injuries as a result of the Incident. While the most serious of those injuries, the pelvic fractures, healed over the course of the following months, the evidence uniformly established that Mr. Ackley continues to experience pain in his hips, pelvis and low back some five years after the Incident. It is also apparent that he continues to experience some emotional and psychological difficulties. I am satisfied on the evidence that these ongoing issues were caused by the Incident.

[147]     I accept that the Incident has had a significant impact on Mr. Ackley’s enjoyment of life as well as on his future employment opportunities. However, I do not find that the impacts are as extensive as he claims. For example, it is clear that he returned to playing hockey relatively soon after the Incident and his attempt to explain away the apparent number of games played was unconvincing. Similarly, his evidence about his work history after the accident was vague and he has offered no explanation as to why he has not sought alternate employment since leaving DNA in May of 2014…

[150]     I do not propose to review the facts of the cases relied on by the parties but I have read and considered them, along with the general principles governing awards of non-pecuniary damages established by the authorities: see Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46.

[151]     Applying those principles to my findings as set out in paras. 146 and 147, I conclude that an appropriate award on non-pecuniary damages is $100,000.


$140,000 Non-Pecuniary Assessment For Permanent Low Back Nerve Injury

July 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing damages for a permanent low back nerve injury with accompanying depression.

In today’s case (Bellaisac v. Mara) the Plaintiff, who was described by the Court as “an uncomplicated man who enjoys life’s simple pleasures, including those of hard physical labour” was injured in a 2009 rear end collision.  The crash caused L5-S1 Disc Injury which impacted and permanently injured the S1 nerve root.  In describing the injury and prognosis the Court accepted the following medical evidence –

[36]         Dr. J. Fuller was called by the plaintiff. Dr. Fuller’s key opinions with respect to the plaintiff’s back are set forth in paragraphs 41 and 43 of his March 18, 2014 report:

41. With reference to the low back, the primary finding remains a significant L5-S1 disc protrusion now detected both on CT scan taken at Surrey Memorial Hospital on February 22nd and further MRI of the lumbosacral spine taken at Surrey Memorial Hospital on July 7, 2012. He also presents with a further CT scan of the lumbosacral spine taken at Jim Pattison Outpatient Clinic October 17, 2012. These further investigations merely confirmed the presence of the L5-S1 disc with probable compromise to the S1 roots. His clinical presentation at this juncture is more suggestive of compromise to the left S1 root in that he presents with weakness of calf musculature. He demonstrates at this juncture a degree of root tension on the left, probably involving the left S1 root. There is the probable hyperactivity of the left ankle reflex. There is also numbness of the sole of the left foot and weakness of plantar flexion/pointing the foot downward. All these signs involve the S1 root. There therefore appears to be little reasonable discussion as to the cause of his persistent symptoms.

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

In assessing non-pecuniary damages at $140,000 Mr. Justice Funt provided the following reasons:

[71]         The Court will award the plaintiff $140,000 in non-pecuniary damages. In considering the various factors, the Court has placed particular weight on the plaintiff’s age, which favours an award larger than if he were much older. He will be living with chronic back pain and fluctuating chronic depression for the rest of his life.

[72]         In making the award, the Court considered the fact that Dr. Fisher, in his March 12, 2014 report, mentions the possibility of surgery. As noted, in his April 13, 2012 report Dr. Fuller states:

43. As has been previously discussed, he has really exhausted conservative/nonoperative therapeutic options. On the other hand, he is a poor candidate for surgical intervention. It is now four years and eight months since the motor vehicle accident of July 6, 2009. His symptoms can therefore be considered to be established and it is probable that the trauma to the left S1 root is irreversible. It is also significant that his primary concern has been low back pain. The results of discectomy/removal of a protruding disc are less successful when directed towards low back pain as opposed to severe sciatic pain. He can therefore be considered to have reached maximal medical recovery as was indicated in my previous report of April 13, 2012 page nine, paragraph 45. I would in fact strongly oppose surgical intervention at this juncture in that the prognosis for success is indeed poor.

[73]         With Dr. Fuller’s opinion in mind the Court finds that the future possibility of lower back surgery is not a real and substantial possibility.


Out of Province Insurers Have No Subrogation Rights Over Part 7 Benefits Paid

July 20th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, shutting down an attempt by the Progressive Max Insurance Company from exercising subrogation rights with respect to Part 7 benefits paid.

In today’s case (Middleton v. Heerlin) the Plaintiffs were US residents involved in a motorcycle collision in BC.  They were insured with Progressive and received over $100,000 in medical/rehab and other benefits from Progressive by virtue of Progressive filing a Power of Attorney Undertaking promising to provide their insured with minimum coverage required under BC law for BC crashes.

In the Plaintiffs lawsuit against the alleged at fault motorist Progressive sought to get their money back arguing they had rights of subrogation.  The Court shut this argument down noting similar arguments were dismissed by the BC Court of Appeal in 2000 and that recent statutory changes do not change this result.  In dismissing Progressive’s argument Mr. Justice Johnston noted as follows –

[11]         When Matilda was decided, the relevant portions of s. 25 of the Insurance (Motor Vehicle) Act provided as follows:

25.       (1)        In this section and in section 26, “benefits” means a payment that is or may be made in respect of bodily injury or death under a plan established under this Act, other than a payment pursuant to a contract of third party liability insurance or an obligation under a plan of third party liability insurance, and includes accident insurance benefits similar to those described in Part 6 of the Insurance Act that are provided under a contract or plan of automobile insurance wherever issued or in effect.

            (2)        A person who has a claim for damages and who receives or is entitled to receive benefits respecting the claim, is deemed to have released the claim to the extent of the benefits.

[12]         The court noted at para. 7:

As the chambers judge noted, in the absence of any express statutory right of subrogation the insurer’s right of subrogation is a derivative right only, which must be advanced in the name of the insured. The insurer is placed in no better position than that of the insured. The revised form of question 1 could be answered “no” simply on the ground that Progressive has no status as a subrogated insurer to advance any claim against the defendants in its own name.

The revised question, to which the above answer was given, was stated in this way at para. 2:

Does Progressive (the third party) have an enforceable right under the contract or the common-law to recover from the defendants all or part of the funds, being $17,800.00 U.S. paid by Progressive to the plaintiff?

[13]         It would seem, therefore, that unless the plaintiffs can point to an express statutory right of subrogation, the answer in these cases must be governed by the result in Matilda set out above.

[14]         In spite of the finding in para. 7, the court in Matilda went on to deal with what it said was a broader issue argued by the parties – provincial legislative competence over extra-provincial insurance contracts, which it framed in this way at para. 8:

The issue is whether the provisions of the Insurance (Motor Vehicle) Act purport to modify the terms of extra-provincial policies and thereby exceed the reach of provincial jurisdiction. In my view, they do not. The focus of s. 25(1) and (2) is on the tort action by Progressive’s insureds against ICBC’s insureds. The torts are the motor vehicle accidents that occurred within British Columbia and clearly are within provincial jurisdiction. The subsections simply provide that accident benefits cannot be claimed in the B.C. tort actions irrespective of where the policy paying the benefits was made. That does not purport to modify the terms of the extra-provincial policies. It merely limits the damages recoverable in tort whether by the insured beneficially or Progressive as subrogated claiming in the name of its insureds. In my opinion, the subsections address an incident of provincial jurisdiction over torts within the province and do not attempt to legislate terms of extra-provincial contracts. [Underlining added.]

[15]         Although there is no argument in these applications that the current version of the statute purports to modify extra-provincial contracts, the underlined portions above would appear to offer no comfort to Progressive, as there is no material difference in wording between the section before the court in Matilda and s. 83(1) and (2) invoked by the defendants in these cases…

[21]         I conclude that Matilda governs the interpretation of s. 83, is not affected by the change in wording from s. 26 to s. 84, and is a full answer to these applications.

[22]         Both applications are dismissed with costs to the defendants.


“En Masse” Document Book and Discovery Transcript Admission Leads to New Trial Following Jury Verdict

July 13th, 2015

Reasons for judgement were released today by the BC Court of Appeal ordering a new trial after a document book was admitted ‘en masse’ along with a discovery transcript in a personal injury  jury trial.

In today’s case (Han v. Park) the Plaintiff was injured in a 1999 collision that the Defendant admitted fault for.  The litigation had a “somewhat tortured history” finally coming to trial in October 2013.  The Plaintiff was awarded only a fraction of the damages she sought.  The Court of Appeal ordered a new trial finding it was inappropriate to give the jury access to a defence document book without careful limitations as to the use of the various documents contained therein and also for having access to a discovery transcript.  In criticizing these steps the Court of Appeal provided the following reasons:

[31]         This Court has held that medical records should not be entered en masse: Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431:

[39]      The preferable approach is obvious. Clinical records should not be admitted into evidence, by consent or otherwise, unless counsel identify the specific purpose for particular portions of the records. Furthermore, it would be preferable to introduce discrete portions of the records when they become relevant so that their admissibility can be ruled on at that time, when the jury will better appreciate the purpose of those portions in the context of the case and will have the assistance of a contemporaneous limiting instruction. In no event should a “book” of documents simply be handed up to the court and admitted as a whole.

[Emphasis added.]

[32]         I would not restrict this comment to medical records. Further, the fact that an appellant may have consented to the admission of the records is not always the determinative factor in deciding whether documents should have been entered into evidence, and will not preclude the ordering of a new trial with costs to the appellant after prejudicial clinical records were entered into evidence: Owimar v. Greater Vancouver Transit Authority, 2007 BCCA 630, citing Samuel.

[33]         In Owimar the court held that a new trial was required where the admission of certain psychiatric records without a proper limiting instruction resulted in an unfair trial:

[41]      In my opinion, the admission of the psychiatric records in this case rendered the trial unfair. The records were left with the jury at the second day of trial. The limiting instruction as to opinions expressed in the records was given shortly before the jury retired to consider its verdict. In the meantime, there were many statements contained in the records that portrayed the plaintiff as unstable and out of touch with reality. Those statements might easily have been accepted by the jury as further diminishing the plaintiff’s credibility. Although there is no doubt that the plaintiff’s credibility was a central issue in the case and he had much to do to convince the jury of his truthfulness, that issue deserved to be proved independent from psychiatric evidence that had no bearing on the physical injuries he claimed to have suffered. I would accordingly order a new trial.

[34]         I agree with the appellant that like Owimar, the inclusion of some of the clinical records and material contained in the Exhibit had the effect of portraying the appellant as a difficult, manipulating, and stubborn individual. As appellant’s counsel states, this portrayal shifted the focus of the jury to the appellant’s negative character traits, rather than to the main issues of the trial.

[35]         The respondents’ trial counsel assured the judge all the documents in the Exhibit would be referred to in the cross-examination of Ms. Han but they were not. Some of the documents were irrelevant, some were prejudicial, and some were inflammatory. The Exhibit was marked outside the presence of the jury – the trier of fact – which is an irregularity. There was no document agreement in place, so the basis for the appellant’s consent to the admission of the Exhibit is not clear. Even with consent, the trial judge is always the gatekeeper.

[36]         In my view, the Exhibit should not have been admitted en masse. Some of the documents and records should not have been admitted at all, as their admission was highly prejudicial and resulted in a substantial wrong or miscarriage of justice.

[37]         On this ground alone, it is in the interests of justice to order a new trial….

[39]         I agree with the appellant there was a significant risk that the jury would give greater weight to the transcribed portions than to the appellant’s testimony since there was no transcript of her answers given in evidence in response. The judge’s instruction to the jury that the transcript was an aide memoir did not overcome the resulting prejudice to the appellant resulting from the jury having only one side of the picture during their deliberations.

[40]          This procedure was highly irregular and prejudicial to the appellant, resulting in a substantial wrong or miscarriage of justice.

[41]         I would also allow the appeal on this ground.

Lastly, the Court noted it is inappropriate to conduct a present value calculation when considering the costs consequences of a historic formal settlement offer.


“Careless” If Not “Deceptive” Expert Opinion Judicially Criticized

July 9th, 2015

Adding to this site’s archived cases criticizing expert advocacy in the guise of opinion, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, criticizing such an opinion.

In today’s case (Hendry v. Ellis) the Plaintiff was injured in a collision and sued for damages.  THe Defendant hired a doctor who minimized the connection between the Plaintiff’s complaints and the collision.  At trial, through cross examination, the doctor made various admissions beyond the borders of the opinion contained in the report.  In criticizing the physician’s opinion as “careless” if not outright “deceptive” Mr. Justice Jenkins provided the following reasons:

[26]         Expert evidence tendered at trial was that the duration of soft tissue pain is considered to be 12 to 16 weeks and if pain is experienced after that time, it is due to some other mechanism. As Ms. Hendry had no back pain prior to the accident, it is clear that some other mechanism from the accident is the cause or contributing to her current pain.

[27]         I will not review in detail the medical evidence which is lengthy. However, I can safely say that I accept the opinion of Dr. Sawhney, the plaintiff’s doctor, and do not find the evidence of the defence expert, Dr. Bishop, to be particularly helpful. I have no doubt about Dr. Bishop’s qualifications, however, there were significant inconsistencies in his evidence provided in an earlier case, the transcript of which was tendered at trial. At trial he agreed the absence of an objective basis for pain does not invalidate pain but he did not say so in his report.

[28]         At trial, Dr. Bishop admitted that the plaintiff continues to suffer pain and if the motor vehicle accident did not occur, she would not have experienced the soft tissue injury caused by the motor vehicle accident that initiated acute pain, and he also stated that pain triggers a psychiatric reaction that can lead to chronic pain which is what Ms. Hendry is experiencing. However, once again he did not say so in his report. Dr. Bishop also admitted most chronic pain patients at three years after the accident will likely not make considerable progress or at least he agreed that the chances of significant progress are low.

[29]         I will just refer as well to the notes just to save time in the written submissions of the plaintiff in paras. 48 through 53 which I accept those references in the written submissions of the plaintiff regarding the evidence of Dr. Bishop. These submissions were:

48.       He [i.e. Dr. Bishop] admitted Ms. Hendry had no prior history of low back pain.

49.       He admitted that numerous medical studies have been published, put that put that 3-15% of people continue to have pain after a soft tissue injury and that by definition, Ms. Hendry is in that percentage of people.

50.       In a previous case he had admitted that there is a leading medical theory that explains why people have pain after 12-16 weeks: central nervous system hypersensitivity theory, but in the case at bar he denied it was a leading theory, even though he accepted it.

51.       He admitted that he did not advise the court in either of his report that 3-15% of people continue to have pain after a soft tissue injury even though he knew he was writing his second report specifically for the purpose of an imminent trial.

52.       It is respectfully submitted that Dr. Bishop did not meet the requirement of an expert in their duty to assist the court and to candidly disclose alternate theories that could account for the plaintiff’s pain. At best, it was careless, at worst, it was deceptive by omission.

53.       He finally admitted that MVA injuries were the only reason that started the plaintiff down the path of chronic pain. When asked if the car accident initiated the process, he finally admitted that yes it had. He said that he did not put this in his report because “I’m bound by the questions I was asked”. With respect, this is an irresponsible attitude for an expert to hold.

[30]         Dr. Bishop also stated many times he does not know the objective cause of her pain as no bone scans have been performed and she has not seen a psychiatrist for testing. I find that the cause of the pain has been the soft tissue injuries and other injuries, some of which may not now be identified as per Dr. Bishop and that her pain is chronic in nature and most likely to continue.


Speculation of Further Lawsuit Not Enough To Trigger Adjournment

July 7th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether an adjournment should be granted in the face of a recent collision.

In today’s case (Wall v. Kexiong) the Plaintiff was involved in three collisions and sued for damages with the claims being scheduled for trial at the same time.  The Plaintiff was then involved in a fourth collision where liability was apparently in dispute.  The Plaintiff did not start a lawsuit but the Defendant argued the scheduled trials should be adjourned in the event the Plaintiff commenced a further action.  In declining to adjourn the trials based on this speculative development Master Muir provided the following reasons:

[5]             The defendant relies on the Court of Appeal decision in Garcia v. Drinnan, 2013 BCCA 53, which discusses the problems of separate trials in cases of indivisible injuries and the potential for overlapping or inconsistent treatments of the same facts, overlapping forms of proof, and the court quotes from the judge below:

[15] The issue of the extent of the indivisible injuries, as well as the assessment of the damages suffered as a result of them are issues that must be answered in both actions, as will be the issue of whether the plaintiff has appropriately mitigated his damages. On the face of it, it is possible for the finder of fact in each case to come to a different conclusion on those issues. That may well be embarrassing to the administration of justice.

[6]             I do not disagree with the defendant’s view of the issues where there are indivisible injuries. It is common that sequential accidents that result in indivisible injuries are tried together for precisely the reasons advanced by the defendant.

[7]             The concern that I have here is that, with respect to the fourth accident, there has been no action commenced, and although the defendant urges on me that it is almost a certitude that the fourth accident will result in an action, that remains still, in my view, a matter of some speculation.

[8]             The plaintiff advances significant prejudice if there is a delay in this matter. Hence, counsel says that if there is an adjournment, she should have a significant advance in the amount of approximately $80,000 to allow her to deal with the financial impact that these matters have had on her, and points out that the first accident occurred in May of 2010, five years ago.

[9]             In all of the circumstances, as I said, although I would generally in circumstances of indivisible injury grant the order sought by the defendant, given the prejudice to the plaintiff and in the circumstances that the fourth action has not been commenced, I find that it would be inappropriate to grant the order sought, and I decline to do so.


$110,000 Non-Pecuniary Assessment for Fractured Ribs, Knee Injury and Chronic Pain

July 7th, 2015

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a host of injuries resulting from a collision.\

In the recent case (Grewal v. Naumann) the Plaintiff was involved in a 2007 T Bone collision.  The collision was significant and resulted in 3 broken ribs, a knee injury requiring surgical intervention and a variety of soft tissue injuries resulting in some chronic symptoms.  In assessing non-pecuniary damages at $110,000 Mr. Justice Masuhara provided the following reasons:

[120]     My findings of the injuries suffered by the plaintiff from the Accident are:

(a)            three fractured ribs two of which were comminuted, and internal injuries which physically healed by January 2008;

(b)            chondromalacia patella and a small tear to the anterior horn of medial meniscus; which was repaired by surgery; there is some risk of arthritic degeneration but only slightly greater than the general population.  The range of motion in his right knee has always been normal; though at times there has been the presence of fluid buildup which has never been assessed as more than minimal.

(c)            soft tissue injuries to neck, right shoulder, lower back, right wrist and right ankle.

(d)            chronic pain.  While I find that there is chronicity to some of Mr. Grewal’s reported pain.  I find that the pain is at the low end of the range. 

(e)            the recurrence of a major depression which is now in remission.  Mr. Grewal had a pre-Accident history of depression, including major depression and that the Accident caused him to experience significant depression and anxiety.  The Accident related depression arose in around June 2009 and became a major depression in April 2011, gradual improvement was occurring which by February 2013 no depression was detected and was deemed to be in remission by December 2013 where Mr. Grewal was found to be in a “happy stable state”.  Mr. Grewal’s sleep was said to be “good” by September 2012.  He has remained in remission since and that reducing his medications is a potential.  Mr. Grewal however is at higher risk to suffer from recurrence of anxiety and depression as a result of the Accident. 

[132]     Based on my findings of Mr. Grewal’s injuries from the Accident including the likelihood of future effects, my view is that the defence cases cover injuries which are not as extensive as the plaintiff’s and that the injuries approximate closer to the cases handed up by the plaintiff.  However, his depression continued for some time before going into remission; the knee injury and resulting surgery, and ongoing chronic pain (though at the low end) are factors which require added recognition. 

[133]     I assess damages at $110,000. 


$87,500 Non-Pecuniary Assessment for Neurogenic Thoracic Outlet Syndrome

July 2nd, 2015

Adding to this site’s archives addressing non-pecuniary damages for traumatically induced thoracic outlet syndrome, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such an injury.

In today’s case (Hsu v. Choquette) the Plaintiff was involved in a 2010 collision that the Defendant accepted fault for.  The collision caused compression of nerves resulting in Thoracic Outlet Syndrome.  In assessing non-pecuniary damages at $87,500 Mr. Justice Schultes provided the following reasons:

[40]         The type of TOS that Dr. Salvian diagnosed in Ms. Hsu’s case was neurogenic (nerve-based), caused by compression of nerves in an area known as the brachial plexus.

[41]         Through a series of standard physical tests, he was able to provoke the symptoms of tingling in the right arm and all of the fingers and severe pain in the right shoulder and neck. His review of her medical and therapeutic records revealed a post-accident history of pain and tenderness in the right neck and shoulder muscles, right shoulder pain and numbness travelling down that arm to the fingers. He did not find many symptoms on the left side.

[42]         His opinion was that Ms. Hsu’s headaches and neck pain were related to injury to the muscles and ligaments of the neck and upper back. He qualified this aspect of his opinion by emphasizing that he is not a specialist in these types of injuries.

[43]         More significantly, his opinion was that her numbness, tingling and pain radiating into all of her fingers but mainly the thumb, forefinger and middle finger of the right hand was “due to a combination of post traumatic TOS and likely a component of carpal tunnel syndrome.”…

[91]         Considering the unique circumstances of this case, but keeping in mind awards made for roughly comparable injuries and levels of pain and suffering, and adding an amount for the insufficiently documented yet legitimate claim for future loss of housekeeping capacity, I will award $87,500 under this heading.


Court Reduces Injury Victim’s Compensation for Standing up to Criminal

June 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with a troubling finding of contributory negligence.  The Court assessed a Plaintiff partly liable for injuries sustained while being criminally assaulted by a Defendant for simply standing up to his assailant.

In today’s case (MacKay v. Jhulley) the Plaintiff was assaulted by the Defendant who struck him in the head with a one metre long metal pole.  The Plaintiff suffered permanent injuries which “severely  impaired” him .  The Defendant was criminally convicted of uttering threats and committing an assault with a weapon.

The Plaintiff sued for damages which were assessed at just under $350,ooo but these were then reduced by 15% for contributory negligence.  The negligence in question? Stepping outside of his home to confront his attacker.

Mr. Justice Kent provided the following  reasons in reaching this conclusion –

[23]         In my view, as occurred in McCaffery v. Arguello, 2014 BCSC 70, this is a case where the law requires the findings of the Provincial Court in respect of the criminal charges to have been conclusively established against Mr. Jhulley in the present civil proceeding. Those findings include that:

·                 Mr. Jhulley uttered threats of death or bodily harm to Mr. MacKay over the phone before driving over to the latter’s house;

·                 Mr. Jhulley was the aggressor throughout;

·                 Mr. Jhulley presented himself at the house with a metal pole in his hands and swung at Mr. MacKay several times through the front window before proceeding to the back of the home;

·                 Mr. Jhulley approached Mr. MacKay and struck him once on the head with a metal pole causing a wound;

·                 Mr. MacKay defended himself by striking the accused in the right eye area with his fist;

·                 Mr. Jhulley was not acting in self-defence;

·                 Mr. MacKay was never the aggressor, and did not have an object in his hands when he approached Mr. Jhulley, rather he was simply defending himself throughout; and

·                 Mr. MacKay did not carry out any sort of unprovoked assault.

[24]         These findings are completely dispositive of the liability issues in this case, including Mr. Jhulley’s counterclaim for damages for personal injury. I find Mr. Jhulley liable to Mr. MacKay for the tort of assault and battery, and Mr. Jhulley’s counterclaim for personal injuries sustained in the altercation is dismissed.

[25]         I would add that even if I were not bound by the findings in the criminal proceeding, I would nonetheless have made essentially the same findings on the evidence in this case. Mr. Jhulley is an unreliable and incredible witness who gave false testimony on numerous points. At his criminal trial, he admitted striking Mr. MacKay with a metal pole, albeit in claimed self-defence, but in the present trial he testified that he never laid hands on the pole at any time but rather struck Mr. MacKay with a wooden two-by-four. The evidence of the assault at the window, damaging both the curtain and the sill, is overwhelming and Mr. Jhulley’s denial that any such incident occurred is completely false. Similarly, his testimony that Mr. MacKay took a break from assaulting him to recharge himself with a snort of heroin is a complete fabrication and one so ludicrous that it beggars belief.

[26]         There is simply no doubt that Mr. Jhulley, fuelled by a drunken rage, drove over to Mr. MacKay’s house armed with a metal pole and intent on inflicting grievous bodily harm. It is outrageous conduct for which he must be held fully responsible not only in criminal court but in these civil proceedings as well.

[27]         Having said that, the issue of contributory fault on Mr. MacKay’s part was irrelevant in the criminal trial and it is therefore open to this Court to hear evidence and make findings on that particular issue.

….

[30]         There is, however, one basis upon which contributory fault can be attributed to Mr. MacKay. The evidence establishes that Mr. MacKay was inside the house with his family when Mr. Jhulley first presented himself and swung the metal bar at the windowsill. There was no reason for Mr. MacKay to go outside and confront Mr. Jhulley in such circumstances. Indeed, common sense dictated that the safest thing to do would be to stay in the house and call the police rather than proceeding outside to confront an enraged and intoxicated Mr. Jhulley who was armed with a metal pole and seemingly intent on doing serious harm to Mr. MacKay.

[31]         By leaving the safety of his house and presenting himself unarmed in front of Mr. Jhulley, Mr. MacKay recklessly endangered himself. Had he stayed inside, the risk of serious injury would not likely have materialized and this case would likely have gone no further than the criminal proceedings. Mr. MacKay’s disregard for his own physical safety was clearly a contributing cause of the injuries he ultimately sustained.

[32]         In my view, however, the vast majority of fault for this incident and for the injuries sustained by Mr. MacKay lies with Mr. Jhulley. He formed the intent to inflict injury and carried out that intent in a vicious manner. Mr. MacKay, on the other hand, while perhaps acting foolishly in the circumstances, thought he was in some fashion protecting his family by confronting Mr. Jhulley. His conduct is far less blameworthy.

[33]         In the result, I allocate fault for Mr. MacKay’s injuries 85% to Mr. Jhulley and 15% to Mr. MacKay himself.


Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

June 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing limits on the use of discovery evidence at trial.

In today’s case (No Limits Sportswear Inc v. 0912139 BC Ltd) the Plaintiff sought to read in evidence at trial of their former employee who was questioned at discovery as a representative of the Plaintiff.  The Plaintiff argued that Rule 12-5(47) allowed such a result.  Madam Justice Griffin disagreed and in preventing the Plaintiff from using the discovery evidence of their former employee the Court noted as follows:

[14]         The interpretation of the Rules suggested by the plaintiffs regarding the use at trial of the examination for discovery of a former employee is contrary to the underlying purposes of the procedure.

[15]         The utility of an examination for discovery would be undermined if self-serving parts of evidence of the former employee given on discovery could be read-in at trial by the party who used to employ the witness. Such a result would seriously inhibit the scope of questioning by the examining party, limiting the fact-finding nature of the discovery and its usefulness as a tool to avoid surprise at trial and to encourage settlement.

[16]         The former employer does not need to use the examination for discovery transcript in order to call helpful evidence from its former employee at trial. The former employer always has a choice of calling him as a witness at trial.

[17]         Contrary to the submissions of the plaintiffs, the fact that subrules 12-5(46), (47) and (48) are separate subrules does not lead to the conclusion that each subrule stands alone and that any party can tender the examination for discovery evidence of a former employee.

[18]         Rule 12-5(46) states that evidence given on examination for discovery may be tendered by “any party adverse in interest”. Rule 12-5(47) does not say who it may be tendered by, but instead, deals with the requirement of giving notice of the intention to tender the evidence if it is from a former employee. Subrule (47) does not say the evidence can be tendered by any party and does not supersede the requirement in R. 12-5(46) that it be tendered by a party adverse in interest.

[19]         Also relevant is the restriction on the use of the evidence as set out in R. 12‑5(46)(b). This subrule provides that the evidence is admissible only “against” the adverse party whose status as a party entitled the examining party to conduct the examination. In other words, the evidence of the former employee, if read-in at trial, is only admissible against his former employer, the plaintiff company. It cannot be read-in by one group of defendants as evidence to be used against the other defendant. The plaintiffs’ submission that the plaintiffs should be entitled to read-in portions of the evidence to be used “at large” in the trial would be contrary to these restrictions.

[20]         The purposes of subrules 12-5(47) and (48) are to deal with the situation where the former employee who was examined for discovery is hostile to his former employer, and gave evidence on discovery which the former employer does not accept and wishes to challenge. Subrule (47) requires that the party tendering the former employee’s evidence, which again by subrule (46) must be a party adverse in interest to the party who formerly employed the witness, must give 14 days’ notice before trial of the intention to tender the evidence. This then gives the party who formerly employed the witness, and any other party, the opportunity to require the witness to be produced for cross-examination at trial pursuant to subrule (48).

[21]         To deal with the possibility that the former employee may have loyalties to none of the parties at trial, subrule (48) allows all parties to cross-examine the witness if his presence is required at trial.

[22]         I find support in this interpretation in the commentary to R. 12-5(47) found in McLachlin & Taylor, British Columbia Practice, vol. 2, 3d ed. (Markham, Ont: LexisNexis, 2006) at 12-51 as follows:

Under SCR 1961, M.R. 370rr, only the examination of a person who was an officer or servant of the corporation at the time of trial could be used as evidence. This was subject to SCR 1961, M.R. 370s which effectively excluded the use of discovery of a former officer or servant who had been dismissed from employment except where such dismissal occurred after service of the appointment for examination for discovery, in which case his examination could be used with leave of the court: Seymour v. Fleetwood Logging Co., [1963] B.C.J. No. 64, 45 W.W.R. 511 (S.C.). The apparent reason for these rules was the prospect of the unfair use against a corporation of the discovery of a person no longer in its employ and possibly hostile to it.

These restrictions on the use of examination for discovery of former director, officer, employee, agent or external auditor of a party was abolished by the enactment of SCR 1976, Rule 40(24) (which became SCR 1990, Rule 40(27)): Robitaille v. Vancouver Hockey Club Ltd. (No. 2), [1979] B.C.J. No. 526, 13 B.C.L.R. 309 (S.C.), affd [1981] B.C.J. No. 555, 30 B.C.L.R. 286 (C.A.). Because a party has no choice in the selection of who is examined on his behalf under Rule 7-2(5), it is arguably unfair to burden him with such a person’s answers: see Rule 7-2(5) and comments thereunder.

Accordingly, SCR 1976, Rule 40(27) (which became SCR 1990, Rule 40(24)) was amended in 1985 to provide that the examination for discovery of a former director, officer or servant may be given at trial only if notice of the intention to do so is delivered to all parties at least 14 days before the trial. Any party may then require that the person examined attend at the trial and, if any part of the examination for discovery is given in evidence, all parties may then cross-examine the former director, officer or servant.

[23]         I conclude that the plaintiffs are not entitled to read-in passages of the examination for discovery of its former employee, Mr. Darren Hawrish.