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.

Plaintiff Stripped of Costs For Failing to Beat Defence Offer

January 19th, 2017

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, stripping a Plaintiff of post offer costs after receiving a jury award less than a pre-trial defence settlement offer.

In today’s case (Rutter v. Vadnais) the Plaintiff was injured and sued for damages.  About 2 years prior to trial the Defendant offered to settle for $50,000.  The offer was rejected and at trial a jury awarded global damages of $20,000.

The Court stripped the Plaintiff of costs from the time of the offer forward which would significantly impact the award given the costs of running the trial.  In reaching this decision Madam Justice Brown provided the following reasons:

[12]         Turning to the effect of the offers exchanged in this matter, Rule 9-1(5) and (6) provides:

Cost options

(5) In a proceeding in which an offer to settle has been made, the court may do one or more of the following:

(a) deprive a party of any or all of the costs, including any or all of the disbursements, to which the party would otherwise be entitled in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(b) award double costs of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle;

(c) award to a party, in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle, costs to which the party would have been entitled had the offer not been made;

(d) if the offer was made by a defendant and the judgment awarded to the plaintiff was no greater than the amount of the offer to settle, award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery or service of the offer to settle.

[am. B.C. Reg. 119/2010, Sch. A, s. 21.]

Considerations of court

(6) In making an order under subrule (5), the court may consider the following:

(a) whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or served or on any later date;

(b) the relationship between the terms of settlement offered and the final judgment of the court;

(c) the relative financial circumstances of the parties;

(d) any other factor the court considers appropriate.

[13]         The plaintiff in this case had strong medical opinions to support her position. The defence position was contrary to the weight of the medical evidence. Although the jury award is less than that offered by the defendant, I am not persuaded that the offer made was one that ought reasonably to have been accepted either on the date that the offer was delivered or any later date. As Madam Justice Adair said in Currie v. McKinnon, 2012 BCSC 1165 at para. 20: “While the purpose of the Rule is to encourage reasonable settlements, parties should not be unduly deterred from bringing meritorious, but uncertain, claims because of the fear of a punishing costs order.”

[14]         Second, while the amount recovered is less than the settlement offer, that is rarely a determinative factor, particularly as jury awards are more difficult to predict than judge assessments (Smagh v. Bumbrah, 2009 BCSC 623 at para. 13).

[15]         The relative financial circumstances are also a neutral factor in this case. Although Ms. Rutter does have some assets, I am not able to say that losing her costs or paying Ms. Vadnais her costs would not have a dramatic financial effect on Ms. Rutter.

[16]         Finally, although the defendant suggests that the history of negotiations between the parties is such that the offer of $50,000 was reasonable in response to the plaintiffs immediately preceding offer of $61,000, I am persuaded by the plaintiff’s response submissions that there were good reasons for her increasing her offer beyond $61,000 “as her retraining exposed her to physical demands of what she could expect to encounter ‘on the ward’ this showed her that her loss was likely to be more than she had previously thought.” The offer of $61,000 was made at the start of her retraining.

[17]         In conclusion, having considered the submissions of the parties and the factors set out in Rule 9-1, the plaintiff will have her costs of the action at Scale B until March 15, 2014, a reasonable time in which to consider the defendant’s offer. The parties will bear their own costs thereafter.


$4.5 Million Cost of Care Assessment in Paraplegia Injury Case

January 18th, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing future care damages in the case of paraplegia.

In today’s case (Warick v. Diwell) the Plaintiff was involved in an “extremely serious” collision in 2009 where an oncoming semi truck/trailer crossed into their lane.  The Plaintiff’s husband and two friends were killed as a result of the impact.  The Plaintiff suffered profound injuries and was left paraplegic.

The parties settled all aspects of their claim except the future care costs.  The Court provided the following summary of applicable legal principles in future care assessments prior to assessing the Plaintiff’s significant damages.

[201]     The essential principles that determine an award for the cost of future care are not really in issue in this case, with each party simply emphasizing different aspects of the same overall body of authority in their submissions.

[202]     With respect to the standard of proof to be met, “[a] plaintiff who seeks compensation for future pecuniary loss need not prove on a balance of probabilities … that she will require future care because of the wrong done to her. If the plaintiff establishes a real and substantial risk of future pecuniary loss, she is entitled to compensation…”:  Graham v. Rourke (1990), 74 D.L.R. (4th) 1 (Ont. C.A.).

[203]     Claims made for future care must be both medically justified and reasonable. An award “should reflect what the evidence establishes is reasonably necessary to preserve the plaintiff’s health”:  Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.) at paras. 199 and 201; aff’d (1987), 49 B.C.L.R (2d) 99 (C.A.).

[204]     This requirement of medical justification, as opposed to medical necessity “requires only some evidence that the expense claimed is directly related to the disability arising out of the accident, and is incurred with a view toward ameliorating its impact”:  Harrington v. Sangha, 2011 BCSC 1035, at para. 151.

[205]     The question has often been framed as being whether a reasonably-minded person of ample means would be ready to incur a particular expense:  Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at p. 245.

[206]     The evidence with respect to the specific care required does not need to be provided by a medical doctor:  Jacobsen v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, (S.C.) at para. 182. However, there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Gregory v. Insurance Corporation of British Columbia, 2011 BCCA 144 at para. 39.

[207]     Damages for the cost of future care are assessed, not mathematically calculated:  Uhrovic v. Masjhuri, 2008 BCCA 462 at paras. 28-31. There is an inherent degree of uncertainty and discretion in making such awards. Because awards are made “once and for all” at the time of trial, judges must “peer into the future” and fix the damages “as best they can”. This includes allowing contingencies for the possibility that the future may differ from what the evidence at trial indicates:  Krangle (Guardian ad litem of) v. Brisco, 2002 SCC 9, at para. 21.

[208]     While no award should be made in relation to an expense that the plaintiff will not actually incur (Izony v. Weidlich, 2006 BCSC 1315 at para. 74), the focus of inquiry when a justified item or service was previously unused, is whether it is “likely to be incurred on a going forward basis”:  Gilbert v. Bottle, 2011 BCSC 1389 at para. 251.

[209]     A plaintiff is not entitled to an award for that portion of their costs of future care that will be publicly funded. However, the risk that access to public funds may be lost in future is a proper basis to provide a contingency in the award:  Boren v. Vancouver Resource Society for the Physically Disabled, 2003 BCCA 388 at para. 25[6].)

 


BC Court of Appeal – No Reverse Onus in Bus Driver Liability Claims

January 10th, 2017

There are a line of cases suggesting that once a plaintiff passenger establishes that he or she was injured while riding on a public carrier, a prima facie case of negligence is made out.

Today reasons were released by the BC Court of Appeal finding this is not so.

In today’s case (Benavides v. ICBC) the Plaintiff was awarded damages after being injured on a bus.  At trial the Court found the driver was negligent.  On appeal the BC Court of Appeal noted that the trial judge was wrong in finding there is a reverse onus in such cases however upheld the result on the basis that there was sufficient evidence to establish driver negligence.

The BC Court of Appeal provided the following reasons setting out the principles of liability:

[17]         I draw from this review of the law the following principles:

·       The mere fact that a passenger is injured while riding on a public carrier does not establish a prima facie case of negligence.

·       The plaintiff bears the burden of proving on a balance of probabilities that the defendant breached the standard of care owed to the plaintiff.

·       Once the plaintiff establishes a prima facie case of negligence, in practical terms the burden shifts to the defendant to answer the case against him and to show that he was not negligent.


$175,000 Non-Pecuniary Assessment for Post Concussion Syndrome and Chronic Pain

January 5th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a “violent” collision resulting in a permanent brain injury and chronic pain.

In today’s case (Sundin v. Turnbull) the Plaintiff was rear-ended while riding his motorcycle in 2012.  The collision was severe with the motorcycle being embedded in the Defendant’s truck as a result of the forces involved.

The Plaintiff suffered a head injury and post concussive symptoms lingered.  The Plaintiff developed chronic pain and the prognosis for the conditions was poor with residual permanent disability.  In assessing non-pecuniary damages at $175,000 Madam Justice Gerow provided the following reasons:

[106]     As stated earlier, the accident involving Mr. Sundin and Mr. Turnbull was a violent one. Mr. Sundin’s motorcycle was embedded into Mr. Turnbull’s pickup truck and Mr. Sundin was thrown through the air landing on the pavement. Immediately after the accident Mr. Sundin was dazed and spitting out teeth.

[107]     As well, there is no issue regarding Mr. Sundin’s credibility. I found that Mr. Sundin provided evidence in a straight forward and reliable fashion. I accept his symptoms as he described them are genuine.

[108]     There is no question that Mr. Sundin’s life has changed profoundly as a result of the accident. Prior to the accident Mr. Sundin had a history of performing at a high level in both his work and personal life.

[109]     As set out earlier, all the experts agree that Mr. Sundin suffered a MTBI, as well as numerous soft tissue injuries and damage to his teeth in the accident. As Dr. Benavente, the defendant’s expert, acknowledged, Mr. Sundin continues to suffer from post-concussion syndrome as a direct result of the head injury he sustained in the accident. Mr. Sundin’s ongoing symptoms of chronic headaches, problems with concentration and memory, and mood problems are attributable to the post-concussion syndrome.

[110]     As well as his cognitive problems, the expert and lay evidence establishes that as a result of the accident, Mr. Sundin suffers from chronic pain in his neck, shoulders and back, problems with his teeth and jaw, and some ongoing pain in his hips and knees. The evidence is that it is unlikely Mr. Sundin will recover to his pre-accident condition, mentally or physically. Mr. Sundin is having a difficult time accepting that he cannot perform physically or mentally as he did before the accident, and as a result has developed an adjustment disorder. The ongoing symptoms Mr. Sundin is suffering from as a result of the accident impact every aspect of his life.

[111]     As noted in Stapley, the assessment of non-pecuniary damages depends on the particular circumstances of the plaintiff in each case. Having considered Mr. Sundin’s age, the nature of his injuries, the severity of his symptoms and the fact they have been ongoing for four years with little improvement, the ongoing treatments, the psychological, cognitive and memory problems, and the guarded prognosis for full recovery, as well as the authorities, I am of the view that the appropriate award for non-pecuniary damages is $175,000.


$65,000 Non-Pecuniary Assessment for Concussion with Lingering Headaches

January 3rd, 2017

Adding to this site’s archived cases addressing damages for traumatic brain injury, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion with lingering headaches.

In today’s case (Barr v. Accurate Transmission and Driveline) the Plaintiff was struck by a vehicle while in a cross walk.  She sustained a concussion with various lingering post concussive symptoms.

In assessing non-pecuniary damages at $65,000 Mr. Justice Williams provided the following reasons:

[15]         Ms. Barr’s principal injury was diagnosed as a closed head injury. In the report of Dr. Tessler, the neurologist, it is reported that she “likely sustained a Mild Concussive Injury or Mild Traumatic Brain Injury at the lower end of the spectrum of such injuries.”

[16]         Following her release from the hospital, Ms. Barr saw her family doctor, Dr. McCarthy. I note that Ms. Barr had also been under Dr. McCarthy’s care with respect to the problems she had been experiencing as a result of the workplace difficulties.

[17]         In her report and her trial testimony, Dr. McCarthy described the plaintiff’s symptoms following the accident as well as her observations and recommendations over the ensuing months. These included soft tissue injuries entailing extensive bruising and tenderness and also a series of symptoms that are collectively characterized as post-concussion syndrome: complaint of headache, dizziness, nausea, as well as a heightened sensitivity to light and activity. The bruising and associated discomfort resolved in a fairly short time; the post-concussion symptoms continued for a longer time, but Ms. Barr was able to increase her activities, with her dizziness and nausea ultimately resolving. The only noted residual symptom was occasional headache, dealt with by rest and over-the-counter medication.

[18]         The plaintiff described the aftereffects of the motor vehicle accident, beyond the physical bruising. She said she had episodes of headache, that her memory was less reliable, and that her concentration abilities were diminished. She said as well that her mood was affected, in that she was less cheerful and patient, particularly with her husband.

36]         In my view, the injuries sustained in the accident had a reasonably serious impact on Ms. Barr, both in terms of the accident’s immediate aftermath, and its longer term effects. These lingering effects have impacted her self-confidence and the range of leisure activities she can pursue. Moreover, they have adversely affected her mood and outlook.

[37]         That, in turn, has impaired her relationship with her husband. In this context, I note that he is somewhat compromised, in that he has a significant short-term memory deficit. Consequently, he relies on the plaintiff to be the strong one in the family. I am satisfied that her competence and confidence to fulfill this role have been diminished.

[38]         There is as well the matter of the plaintiff’s headaches. Those have not resolved; they still occur from time to time. I am satisfied that that condition is in part attributable to the accident.

[39]         Finally, I note that, prior to the accident, Ms. Barr was what I would describe as an otherwise healthy person just embarking upon what should be a special time of her life, her retirement. These injuries will, to some degree, negatively affect this period of her life.

[43]         In the result, having taken into account the authorities to which I have been referred, and the circumstances as I find them to be, it is my conclusion that an appropriate award of non-pecuniary damages is $65,000.


$175,000 Non-Pecuniary Assessment For Fibromyalgia and Somtatic Disorder

December 28th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychiatric injuries caused by a vehicle collision.

In today’s case (Kim v. Lin) the Plaintiff was involved in a 2007 collision the Defendants admitted fault for. She suffered soft tissue injuries and eventually developed fibromyalgia and a somatic disorder.  In assessing non-pecuniary damages at $175,000 Mr. Justice Sewell provided the following reasons:

[128]     I am satisfied, based on all of the evidence that I accept, that Ms. Kim has suffered soft tissue injuries to her back and SI joints as a result of the Accident, which have caused her considerable pain and discomfort. I am also satisfied that as a result of a combination of Ms. Kim’s physical pain and her personal circumstances, Ms. Kim developed the psychiatric disorders diagnosed by Dr. Shane and the fibromyalgia and chronic pain syndrome diagnosed by Dr. Krassioukov.

[129]     I find that Ms. Kim would not have developed the psychiatric and somatic disorders diagnosed by Drs. Shane and Krassioukov but for the injuries she suffered in the Accident. I therefore find that there is a substantial connection between the tortious conduct of the defendants and the damages and injuries from which Ms. Kim suffers.

[130]     I also find that there is no credible evidence that at the time of the Accident Ms. Kim was suffering from a pre-existing condition that would have had an adverse effect on her future health or capacity. I therefore find that there is no basis for making any deduction from her damages based on any substantial possibility that her health or capacity would have declined in any event…

[152]     In this case, I am satisfied that Ms. Kim’s disability is permanent, in the sense that it is more probable than not that she will continue to suffer from the injuries caused by the Accident for the foreseeable future. Ms. Kim has, however, not suffered any degree of cognitive impairment. The evidence does indicate that there has been some improvement in her overall condition since she moved to Nanaimo and that she has benefitted from counselling with Miyoung Cho, a Korean-speaking psychologist.

[153]     Taking all of the circumstances into account, I assess non-pecuniary damages at $175,000.


$70,000 Non-Pecuniary Assessment for “Permanent Worsening” of a Chronic Pain Condition

December 28th, 2016

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.

In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.


Court Critical of “Uninformative” Trial Briefs

December 16th, 2016

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, with critical comments about “uninformative” trial briefs.

In today’s case (Kirk v. Nanaimo Literacy Association) the parties wishes to dispense with an otherwise mandatory trial management conference and asked the court to waive the hearing.  In refusing to do so the Court was critical of the trial briefs filed and provided the following comments:

[6]             Both parties state in their trial briefs that they expect the trial to be completed within the scheduled time. Yet I don’t know on what basis that assertion could be made because the total time estimates for witnesses and submissions in the two trial briefs exceeds the time set for trial by almost two days. Again, perhaps the trial was rescheduled for more days, but I have not been given any trial briefs reflecting that.

[7]             Further, the trial briefs do not indicate that counsel have fully considered all matters that might usefully be explored at a TMC. For example, the plaintiff’s trial brief, after listing the witnesses to be called, states:

The filing party may call further witnesses to address any outstanding documentary hearsay concerns which the parties are unable to resolve prior to trial.

[8]             If there are unresolved issues about admissibility of documents, particularly if it is going to affect the number of witnesses to be called, that is an issue to be explored at the TMC and the parties are not ready for trial within the meaning of R. 12-2(3.6).

[9]             Under the category of “Admissions”, the plaintiff’s brief says the plaintiff will admit that:

A document which conforms to the requirements set out in the Evidence Act, RSBC 1996, C. 124, s.42 is admissible as prima facie proof of any fact otherwise provable through direct oral evidence.

[11]         Thus, the purported “admission” by the plaintiff amounts to no more than a statement that the law of British Columbia applies to this case. That does not assist the Court in determining what facts will or will not be at issue in trial. I assume there are documents that qualify as business records under the Act, that certain facts stated in them are relevant to the issues in this case and the plaintiff is admitting or not disputing those facts. If that is the case, a party who wishes to be excused from attending a TMC must set out what those admitted facts are.

[12]         The defendant’s trial brief is equally uninformative on this issue. It simply says that the facts the defendant will admit will be “determined prior to trial date”.

[13]         Clearly, as of the date they wrote their trial briefs, counsel had not clearly turned their minds to or discussed the question of what facts could be admitted. Counsel who do not make that effort cannot expect to be excused from attending a TMC.

[14]         Under the heading of “Authorities”, both parties simply state they do not expect a joint brief of authorities at trial. That is not sufficient. The trial brief asks counsel to refer to authorities in order to identify the legal issues that will be argued at trial and in order to satisfy the Court that the parties and counsel have considered the law as it may affect their position at trial. That does not mean counsel need to cite every case they may wish to refer to at trial, but by the time they start preparing trial briefs, counsel should have identified the most important ones.

[15]         This is a wrongful dismissal case, so counsel should by now be familiar with the leading cases in that area as well as any others that are particularly relevant, such as by virtue of comparable facts. Those should have been referred to in the trial brief.

[16]         In short, the trial briefs submitted are largely pro-forma documents that do not give the Court confidence that all issues have been addressed or that all potentially useful discussions between counsel have taken place. The application to dispense with the TMC is therefore dismissed.


$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

December 12th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.

In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.


Court Rejects “Particularly Problematic” ICBC Expert Witness

December 9th, 2016

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, soundly criticizing an expert witness for a lack of objectivity.

In today’s case (La Porte v. Earl) the Plaintiff was involved in a 2010 collision that the Defendant admitted fault for.   She suffered physical and psychiatrist injuries as a result of the crash.  In the course of the crash the Defendant’s insurer sent her to a psychiatrist who marginalized any psychiatric injuries she had and their connection to the collision.

In rejecting this opinion Mr. Justice Sewell provided the following reasons:

[74]         After careful consideration I have concluded that I can give no weight to Dr. Levin’s report. There are a number of reasons why I have reached this conclusion. I begin by saying that I found that Dr. Levin’s report lacked objectivity. It seemed to me that Dr. Levin was marshalling evidence in favour of his conclusion, rather than attempting to communicate constructively with Ms. La Porte to determine her actual mental state.

[75]         Dr. Levin developed a number of themes that he repeated throughout his report. One such theme was to emphasize how resilient Ms. La Porte had been before the Accident, and to extrapolate that resilience into her reaction to the pain and anxiety that she experienced after the Accident.

[76]         At the outset of his opinion, Dr. Levin referred to Ms. La Porte’s pre-accident condition and began by emphasizing that Ms. La Porte did not present with any biological or psychological vulnerabilities that would have predisposed her to the development of any psychiatric illness.

[77]         In his report, Dr. Levin does not address the important question of the interrelationship of pain and anxiety. In fact, Dr. Levin mentioned Ms. La Porte’s reported pain only in passing. In addition, Dr. Levin does not appear to have elicited any details about what actually occurred on Ms. La Porte’s last day of work. The impression he portrays is that Ms. La Porte was managing her job without any difficulty up to the time she stopped working, and stopped working only in anticipation of having an increased workload in the fall of the year. The portion of his report dealing with this question at page 5 states as follows:

Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems. Ms. La Porte stated that she would be upset when her dispatcher would give her a passenger with a heavy wheelchair or walker. Ms. La Porte, however, did not report an actual worsening of her reported pain or physical problems that could cause her any emotional suffering. In fact, while off work Ms. La Porte reportedly improved and was able to relax at home, at times baby-sitting her grandchildren. While discussing her current activities of daily living Ms. La Porte did not report any ongoing psychological or emotional disturbances of clinical significance that would affect her ability to return to her previous workplace or any other employment for which she is suited by her education and experience. When asked about her mood while baby-sitting for her grandchildren she said, “It’s good but I get tired faster…”. [Underline emphasis added.]

[78]         The foregoing summary is at marked variance to Ms. La Porte’s evidence in court that she struggled with the heavier physical demands of her job and the physical exertions of her job significantly worsened her pain. In addition, given Ms. La Porte’s evidence in court, which I have accepted, about the circumstances of her last day of work, I can only conclude that Dr. Levin did not inquire about those circumstances.

[79]         There were two portions of Dr. Levin’s evidence that I found particularly problematic. The first relates to this sentence at page 5 of the report: “Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems.” When Dr. Levin was asked in cross-examination whether he had italicized the word “could” in this portion of his report to emphasize that there was no actual effect on Ms. La Porte’s physical problems, he denied that intent and stated that the italics were a clerical error. I find this answer to be lacking in credibility. In the context of the rest of that portion of his report, it is obvious that Dr. Levin was emphasizing that Ms. La Porte had not yet experienced any difficulty in coping with her work at the time she stopped working.

[80]         In addition, Dr. Levin implies in this passage that Ms. La Porte had not reported any effect that her job had on her physical problems. It is unclear whether he is suggesting she denied any negative effects or whether he based this statement on Ms. La Porte not volunteering any such information. If she told him that her job had no negative effects on her physical problems, it would have been contrary to what she told the other doctors who examined and treated her, as well as to her evidence before me, which I have accepted as credible. I therefore think it is highly unlikely that she denied any negative effects. I note that Dr. Levin did not indicate that he asked any questions about this subject in his interview of Ms. La Porte.

[81]         The second troubling evidence from Dr. Levin is found in his second report dated June 9, 2014. In that report Dr. Levin comments on the reports of the other physicians that have been put in evidence. At page 5, Dr. Levin begins his comments on Dr. Oluyede’s consultation report of November 15, 2012, which he describes as a “clinical record”. He purports to paraphrase a part of Dr. Oluyede’s report commenting on Ms. La Porte’s mood as follows at page 5:

The clinical records dated November 15, 2012, state, “[…] she describes being in a state of shock…three days later, she noticed an increasing pain…following this, she has had subsequent issues with pain…presently, she is going through legal proceedings to get some compensation…”

[82]         Dr. Levin goes on to comment on this passage from Dr. Oluyede’s report, concluding with the following sentence at page 6:

It seems one of the major issues identified in Ms. La Porte’s case is reportedly, “Legal proceedings to get some compensation as she was the injured party…” However, Dr. Oluyede does not discuss any specific psychiatric or psychological injury sustained in the subject MVA that would require any compensation.

[83]         What Dr. Oluyede actually said in her consultation report at page 1 is as follows:

Three days later she noticed an increasing pain in her right leg and her right arm. She described the pain as spasmodic. On the day of the accident she was seen in emergency and had been medically cleared.

Following this she has had subsequent issues with pain and has seen a chiropractor for a while. Both car insurance companies have been involved and her car has been fixed. She took four days off of work at that time.

Presently she is going through legal proceedings to get some compensation as she was the injured party and has been incapacitated since the accident.

She describes not feeling good most of the time, feeling easily stressed out and overwhelmed. She has had to cut down her hours of work from forty hours previously per week to thirty-five hours.

She has noticed a continuous decline in both her physical and mental health. With regards to her mental health she describes easy fatigability, worry and anxiety about her future and with regards to finances. She describes feeling drained most of the time and has noticed that on certain occasions she does have what she describes as overwhelming anxiety.

[84]         In my view, Dr. Levin did not accurately or fairly paraphrase Dr. Oluyede’s consultation report. Even more problematically, when Dr. Levin was cross-examined on the above passage from his report, he again said this was either a typographical error or he misspoke himself in his dictation and meant to say “assistance” not compensation. Again, given the context of the passage, in which Dr. Levin seems to be at pains to show that Ms. La Porte is seeking compensation, I cannot accept this explanation from him.

[85]         In addition, I found Dr. Levin to be argumentative and somewhat non-responsive in the answers he gave in cross-examination. Finally, I am concerned that Dr. Levin had some animus towards Ms. La Porte. At the outset of his notes on his interview with Ms. La Porte he recorded that he felt she was being unreasonable and uncooperative with him. None of the other doctors who conducted independent medical examinations at the request of the defendants made any such comment.

[86]         I therefore give no weight to Dr. Levin’s opinion in this matter.