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.

BC Supreme Court Outlines Parameters of Lay Witness Evidence from Doctors

October 17th, 2016

The line between opinion evidence and fact evidence when given by a physician is sometimes blurred.  Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Defendant sought clarity about the scope of evidence from physicians.  In discussing these boundaries Mr. Justice Steeves provided the following reasons:

[10]         The treatment of that evidence is well established and has been usefully surveyed by Justice Metzger in a previous judgment (Seaman v. Crook, 2003 BCSC 464):

[14]      The cases Ares v. Venner, supra; Sandu and Brink, Olynyk v. Yeo, supra; Butler v. Latter, [1994] B.C.J. No. 2358 (B.C.S.C.), McTavish v. MacGillivray, supra; Coulter and Ball et al., 2002 BCSC 1740 (CanLII); and s. 42(2) which provides:

            In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…

when taken together, stand for the following:

(1)  That the observations by the doctor are facts and admissible as such without further proof thereof.

(2)  That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.

(3)  That the statements made by the patient are admissible for the fact that they were made but not for their truth.

(4)  That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.

(5)  That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.

(6)  That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.

[15]      Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.

[16]      Without having met the requirements of Rule 40A, the oral testimony of the doctor interpreting his clinical records does not change the nature of the evidence contained in those clinical records. The clinical records remain evidence of the fact that he made those notes, made that diagnosis, and prescribed a certain treatment.

[17]      The opinions contained in the clinical records do not constitute independent stand-alone expert opinions. If they did, what would be the purpose of Rule 40A? It is the expert’s opinion that the court is weighing. It is the expert’s report that the court will accept or reject. It is not the opinion in the clinical records that the court is weighing.

[11]         As can be seen, much of this parallels the orders sought by the defendant, British Columbia. There is more to be said here, but I adopt the above summary by Justice Metzger. I add two other points.

[12]         First, the causation issue here relates to waiting for a medical procedure and a patient’s rights under s. 7 of the Charter, whether the latter was infringed by the former. I say this to distinguish causation here from causation on a medical chart that most frequently relates to whether a motor vehicle accident, for example, was of causative significance in a patient’s injury. This latter causation issue may be marginally relevant to the constitutional issues in this case.

[13]         This is also an appropriate place to address the plaintiffs’ submission that the Rules of Evidence cannot be used by the defendant British Columbia to require them to call every patient who has had a negative experience in the health care system in order to prove their case. I agree with that submission and point out that it is not the position of the defendant, British Columbia. What is required in this case, as with other cases, is counsel’s judgment as to the type and volume of evidence that is necessary to prove their client’s case.

[14]         A second category of evidence that arises here is evidence from a doctor, who is not certified as an expert, about his or her experience with waitlists: how long they have been, how a patient gets on a waitlist, any care issues that arise while the patient is on the waitlist and other related matters. I can see no impediment to the admissibility of evidence from doctors about their observations of how waitlists operate. This is part of the everyday experience of important actors in the health care system and it can be of value to the court. I note this is not opinion evidence about whether waiting times are medically justified or not justified. Such opinion evidence must come from a certified expert.

[15]         Another related category of evidence is also from a doctor, again not certified as an expert, who testifies about his or her observations as to a patient’s situation while waiting for a medical procedure. These observations can be about a patient being in pain, having restricted movements, not being at work, being anxious and/or depressed and other matters. I conclude that these observations are also admissible. In my view the character of these observations are the same as observations that could be made by a non-doctor. The fact that the witness is a doctor is relevant inasmuch as he or she may use medical language to describe his or her observations. But I see no difference for the purposes of admissibility with a non-doctor testifying about an accident where the victim was bleeding from the leg and a doctor saying the same victim was bleeding from the carotid artery.

[16]         I acknowledge there is an element of opinion in this type of evidence. However, it has been the case for some time that distinctions between fact and opinion can be tenuous and even false (Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 15 (QL)). This development in the law of evidence has been applied in cases involving, for example, non-expert telecommunication workers describing how to determine the location of a cellphone (R. v. Hamilton, 2014 ONCA 339, at paras. 272-9) and a police officer testifying about his observations from years of experience about the operation of street level drug trafficking (R. v. Ballony-Reeder, 2001 BCCA 293, at para. 12).

[17]         In some cases this is called the “compendium statement of fact exception” to the usual requirement for expert opinions (Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522) and in other cases it is called “lay opinion evidence”, American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042, at para. 142).

[18]         In any case I conclude that a doctor’s observations about his patient while waiting for a medical procedure or prior to being put on a waitlist, however that list is defined, are analogous to the accepted forms of this type of evidence in other cases. This includes identification of handwriting, identification of persons, identification of things; apparent age; the bodily plight or condition of a person, including illness; the emotional state of a person, whether distressed, angry and depressed; and other categories (Graat, at para. 46).

[19]         I also conclude that this type of evidence may be generalized to reflect the experience of a doctor over a period of time and experience with a number of patients in the same situation. Of course, at a certain point highly generalized evidence without sufficient particulars cannot be given significant weight. I have in mind here statements such as patients simply being “significantly disabled” or “in significant distress.” A doctor giving this type of evidence is subject to cross-examination, including questions about specific patients, and this might include details of their treatment.

[20]         There can also be some overlap between the issue of opinion evidence and issues of hearsay. As above, a doctor may well testify about his or her observations about patients waiting for a medical procedure. However, including in that evidence what a patient said can be problematic. This may be a fine line and it could result in the doctor disclosing the name of the patient and other information. Obviously in the case of the death of a declarant, the necessity component in the principled approach to hearsay has been met. Other than these general comments, I consider that the issue of hearsay will have to be considered on the basis of individual cases.

[21]         The plaintiffs rely on what they describe as the special relationship between doctors and patients, and this means that anything said in that relationship is admissible, including hearsay. This is described as “a very strong circumstantial guarantee of trustworthiness or indicia of reliability.” I do not doubt the special relationship between doctors and patients; however, there are other special relationships in society, such as parent/child and lawyer/client. There are constraints, legal and otherwise, on conversations in those relationships, but I am not aware of any authority that says that those conversations are not subject to the usual rules of admissibility of evidence in court. I see no basis for treating discussions between doctors and patients in the broad terms urged by the plaintiffs.

[22]         Turning to a fourth and perhaps final category of evidence here, the evidence may include evidence from a doctor, again not certified as an expert, who says a patient is experiencing a specific medical condition caused by waiting for a medical procedure.

[23]         In my view that is an issue that is at the heart of this litigation and ultimately for me to decide. There can be evidence on that issue that would certainly assist the court, but in my view it must be evidence in the form of an expert. To be clear, evidence on that issue or similar issues from a doctor testifying without being certified as an expert is not admissible. I take examples of this from the will-say statements that include a statement that wait times have a significant impact on the health outcomes and quality of life of patients or delayed treatment has a negative impact on the overall well-being of patients. Again, these conclusions are for the court to make based on admissible evidence including observations by physicians, expert reports and evidence from patients.

[24]         I close this discussion by saying, I have considered the trial and Supreme Court of Canada levels Chaoulli matter (Chaoulli v. Quebec (Attorney General), [2000] J.Q. No. 479, 2005 SCC 35). As urged by the plaintiff, I have treated those judgments as a guide to the issues here. I also note that the specific issues raised here were not raised or otherwise decided in Chaoulli (except for comments from the minority judges at the Supreme Court of Canada.) Here the issues are very clearly in dispute and they require consideration and resolution.


$70,000 Non-Pecuniary Assessment for Chronic Low Back Injury

October 17th, 2016

Adding to this site’s archived posts of ICBC back injury claims reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry assessing damages for a chronic low back injury.

In today’s case (O’Brien v. Cernovec) the Plaintiff was involved in a 2011 T-bone intersection collision caused by the Defendant.  The Plaintiff sustained a variety of soft tissue injuries that resolved in short order however he was left with a chronic low back injury that continued to the time of trial and was expected to persistent indefinitely.  In assessing non-pecuniary damages t $70,000 Mr. Justice Pearlman provided the following reasons:

[93]         Here, the plaintiff has been consistent in reporting his symptoms and the progress of this recovery to each of the medical experts, and in his testimony at trial.  Mr. O’Brien readily acknowledged that he had recovered from the soft tissue injuries to his mid-back, shoulders, neck, legs, knees and wrists within two months of the accident.  I find that at trial the plaintiff did his best to provide an unembellished, matter-of- fact account of his injuries as he recalled them, and as they persist.  Drs. Adrian and Horlick both agreed that the plaintiff’s history, his description of the accident, their findings on physical examination and the results of the medical imaging are consistent with the plaintiff having sustained injuries, whether described as mechanical or myofascial, to the tissues of his lower back.  I am satisfied that Mr. O’Brien experiences the chronic low back pain he described in his testimony.

[94]         Since October 2012, Mr. O’Brien has completed all of his regular full-time shifts, occasionally with accommodations from his current employer or assistance from fellow employees.  However, as a result of his low back pain, he tires as the day progresses, experiences pain and discomfort, and sometimes struggles to complete his shifts. Mr. O’Brien no longer derives the same enjoyment from his work as he did before the accident.  He is a stoic who does his best to get on with and complete the work assigned to him.

[95]         I also take note of the fact that the plaintiff, while frequently turning down overtime, has worked 14 overtime shifts since August 1, 2015. The fact that the plaintiff has worked some overtime is consistent with the evidence that his symptoms fluctuate and that some work days are better than others.

[96]         I attach little weight to the fact that Mr. O’Brien has not used prescription painkillers, anti-inflammatories or muscle relaxants since a month or so after they were last prescribed in late July 2012.  Mr. O’Brien prefers to limit his use of prescription medications.  Since the summer of 2012, he has used over-the-counter Advil and Tylenol to assist in managing flares in his low back pain. He copes with considerable discomfort in the workplace and does his best to fulfil the requirements of a physically demanding job.

[97]         The plaintiff has experienced frustration with his failure to make a full recovery from his injuries. His frustration at times leads him to withdraw into himself, and to limit his social contacts.

[98]         The plaintiff, at age 23, will probably continue to experience his persistent low back ache, intermittent numbness in his left leg, and flares of low back pain of varying intensity indefinitely, and with no significant improvement.  Fortunately, he is unlikely to suffer any progressive deterioration of his low back injury.

[99]         Mr. O’Brien is able to perform all housekeeping tasks, when asked.  However, chores such as mowing the lawn or cleaning his bathroom cause some discomfort and take longer than before the accident.  When Mr. O’Brien and Ms. Allison have their own home, the plaintiff’s responsibilities for housekeeping and home maintenance will increase.  He will experience discomfort and occasional pain in performing tasks that require prolonged bending or stooping.

[100]     Mr. O’Brien continues to take part in a range of recreational activities but participates in some at a lower level of intensity, and with less frequency than before the accident.  The plaintiff and Ms. Allison walk their dogs together and attend yoga classes.  Mr. O’Brien goes on lighter hikes but is unable, as a result of his persistent back pain, to join his friends on overnight treks.  Since the accident, he had played baseball and football occasionally.  While he is able to throw a ball, batting aggravates his back pain.  The plaintiff performs home-based stretching exercises four times a week and attends a gym where he works on both cardio exercises and core strengthening to alleviate his back pain.  He has attempted horseback riding, a favourite activity of Ms. Allison, but finds it aggravates his back pain.  On a recent trip to Ireland, he was able to ride a horse, at a walk, for 90 minutes, with considerable discomfort.  He has modified or reduced some activities in order to minimize his lower back pain.  When he and Ms. Allison watch television or a movie together, he will shift his sitting positions, and after 30 minutes or so will stand up and stretch in order to relieve discomfort from prolonged sitting.

[101]       As a result of the defendant’s negligence, the plaintiff has suffered some diminution in his enjoyment of life.

[102]     The plaintiff’s mother corroborated his evidence that he is frustrated by his persistent symptoms of low back pain, and his lack of progress toward recovery.

[103]     While Mr. O’Brien’s still socializes with his friends, he does so less frequently than before the accident.  His mood declines when his pain flares.

[104]     Ms. Allison corroborated the plaintiff’s evidence that his symptoms vary, and that he has some bad days when he experiences significant pain.  On those occasions, the plaintiff becomes more reserved and withdrawn.  However, both the plaintiff and Ms. Allison confirmed that they have a committed relationship. 

[105]     The plaintiff continues to enjoy a close relationship with his family and with Ms. Allison. His injuries have not resulted in any significant impairment of his family and emotional relationships.

[106]     Taking into account the plaintiff’s particular circumstances, all of the Stapley factors, including the probability that Mr. O’Brien, at age 23, will continue to experience persistent low back discomfort and intermittent flares of pain indefinitely, and after considering all of the authorities cited by counsel, I assess damages for the plaintiff’s pain and suffering and loss of enjoyment of life in the amount of $70,000.

Motorist Found Fully At Fault For Crash Despite Being Rear-Ended

October 13th, 2016

Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.

In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant.  The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony.  The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead.  In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:

[53]         Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident.  I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

[54]         I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision.  Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light.  He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection.  He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.

[55]         Mr. Bingul was aware that there was a large and heavy vehicle in the lane.  I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

[56]         I therefore dismiss the plaintiff’s claims against all defendants.

$90,000 Non-Pecuniary Assessment for Lumbar Facet Joint Syndrome

October 12th, 2016

Adding to this site’s archived posts of ICBC back injury claims, reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic, partly disabling back injury.

In today’s case (Klein v. Sangha) the Plaintiff was injured in 2 collisions.  Fault was admitted and the trial focused solely on the quantum of the Plaintiff’s claim.  In finding the collisions resulted in a lumbar facet joint injury giving rise to chronic pain the Court provided the following reasons in assessing non-pecuniary damages at $90,000 –

[51]         It is clear on the medical evidence, particularly Dr. Rickards’ evidence, that Mr. Klein probably suffered Lumbar Facet Joint Syndrome as a result of the first accident and that, as a 39 year old male who had suffered “some” degenerative disc disease to his cervical back area, he was susceptible to such an injury…

[57]         Considering the inexhaustive list of common factors influencing an award of non-pecuniary damages referred to above, I note the following factors are particularly applicable:

(a)      The age of the plaintiff. Mr. Klein was in his late thirties at the time of the first accident in a well-established occupation which provided financial and personal satisfaction to him. But for the accident, Mr. Klein would have had many more years of job satisfaction.

(b)      The nature of the injury. Mr. Klein’s injury, specifically to his spine, affects all aspects of life including work, play, sleep and everyday chores.

(c)      The severity of pain. Mr. Klein’s pain has left him bed-ridden for prolonged periods of time, interfered with his graduated return to work and led to much pain and frustration over four years.

(d)      The disability. Mr. Klein’s disability meant he could only return to work on a part-time basis before the second accident. He has only been able to undertake some of the tasks he was able to complete before the accident and only with resulting pain.

(h)      Impairment of physical abilities. This is obvious from Mr. Klein’s evidence and Dr. Rickards’ report.

(i)       Loss of lifestyle. Mr. Klein is no longer able to participate in sporting activities, except for a very short period of time. He cannot continue his chosen line of work which gave him great satisfaction in the past, i.e. working with his hands. He has suffered loss of sleep and cannot maintain a home without assistance. He now relies on friends for help whereas he was previously very independent. He has expressed considerable frustration in spite of his efforts to improve including physiotherapy, exercise, acupuncture and more. Nonetheless, he has been told to expand his efforts at establishing an exercise program.

(j)       The plaintiff’s stoicism. Mr. Klein has exemplified stoicism by attempting to return to work, to establish and restore a construction business  in a modified scenario from his pre-accident work and to continue to support his daughter who was suffering from depression while Mr. Klein was dealing with his injuries. Every aspect of his life has been affected by his injuries…

[62]         Mr. Klein expressed considerable frustration at his inability to function at work and in all other aspects of his life. I found his evidence in this respect to be credible. He also thinks, quite reasonably, considering his experiences since the accident, that he will likely be affected by the injuries for a considerable time to come.

[63]         I have also considered Dr. Rickards’ evidence about a rehabilitation program he proposed to Mr. Klein to minimize or possibly overcome the effect of his injuries. I have considered his injuries to date and the likelihood that he may never totally recover from them in the above assessment of non-pecuniary damages. Considering all of the evidence and authorities, I find an appropriate award of non-pecuniary damages to be $90,000.

Announcing MacIsaac & Company’s new Distracted Driving Campaign

October 11th, 2016



I try to keep the commercial messages in this website to a minimum but wanted to quickly break tradition to announce my firm’s anti Distracted Driving Campaign.

Simply titled “we sue distracted drivers” the message is clear, simple and to the point.

Between web and more traditional avenues such as billboards and bus ads I hope the message that distracted driving comes with consequences is loud and clear.

You can visit the new website here.

Responding Expert Reports Must Be Tendered in Party’s Case in Chief

October 4th, 2016

Interesting procedural reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing when a party must tender responding expert reports.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs sought to tender their responding expert reports after the Defendant tendered their expert reports. The Defendant objected noting the reports should properly be admitted as part of the Plaintiff’s case in chief.  In agreeing with the Defendant Mr. Justice Steeves provided the following reasons:

[9]             It seems to me that the Rules are intended to promote efficiency in a trial. Historically, expert opinion evidence was given simply by a notice, as described in Abell v. British Columbia (Greater Nanaimo Water District), 1979 CanLII 657 (BC SC), but now there are strict requirements. With respect to reply reports, they are intended to avoid parties putting in reply reports at trial for the first time. Here the plaintiffs’ position would not bring back that situation entirely; however, it would at least open up the risk of sur-reply expert reports, thus possibly lengthening these proceedings.

[10]         Overall I conclude that, while it is always open to a party to apply to apply to call rebuttal evidence, a responding expert under the Rules is quite a different part of a trial. In short, a responding expert report is not rebuttal evidence in the usual sense of being in response to unanticipated evidence. In my view, as with all anticipated evidence, the plaintiffs must call and exhaust their evidence. This is paraphrasing of the judgement in Commercial Electronics v. Savics, 2011 BCSC 162. The plaintiffs will examine their expert witnesses about their reports, including responding reports as part of their case.

$110,000 Non-Pecuniary Assessment for Concussion and Chronic Low Back Pain

September 30th, 2016

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a concussion and chronic soft tissue injuries sustained in a collision.

In today’s case (Purewal v. Li) the Plaintiff was involved in a 2012 intersection collision.  The court found the Defendant fully responsible for the crash.  The Plaintiff suffered a concussion, chronic headaches, chronic low back pain and aggravation of some pre-existing injuries.  The collision resulted in substantial time away from work along with lingering injuries at the time of trial.  I assessing non-pecuniary damages at $110,000 Mr. Justice Greyell provided the following reasons:

[156]     The impact sustained by the plaintiff’s vehicle during the Accident was unexpected and substantial. The injuries sustained by the plaintiff included a concussion when he struck his head, ongoing headaches and substantial soft tissue injuries to his shoulder, upper, mid and lower back. I find the Accident aggravated injuries sustained by Mr. Purewal in the Prior Accident. In addition, I find Mr. Purewal had interrupted sleep and developed a depressed mood as a result of his ongoing pain and discomfort which has affected his family life, including his relationship with his daughters and his wife. While Mr. Purewal has returned to work he will likely continue to suffer from lower back pain which will, over time, limit his ability to work the amount of overtime as he has in the past.

[157]     Based on the principles set out in Stapley and on my review of the cases cited by counsel Mr. Purewal’s non-pecuniary loss should be assessed at $110,000, which includes a consideration of the degenerative condition of Mr. Purewal’s lower back.

BC Supreme Court – Articles Cited in Expert Reports Are Not Evidence

September 22nd, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that articles cited in expert reports are not evidence and outlining how these documents can be used at trial.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs, who are suing the government of BC arguing certain Provincial health-care laws are unconstitutional, sought to introduce articles and texts cited by their expert witnesses into evidence.

Mr. Justice Steeves provided the following concise and helpful statement addressing the limits and procedural use of such documents:

11]         It follows that I do not agree that the plaintiffs can go as far as they would like to go and put in articles through their experts on examination in chief. I adopt the approach in the Sopinka text and add the following procedural requirements:

1.     An article or text cited by an expert in his or her report may be identified by the expert and then entered as an exhibit for identification. I emphasize that the article or text has to be cited, but the expert report does not have to specifically state that the expert is adopting the article or text.

2.     As part of the examination in chief of the expert he or she may be taken to specific parts of the article or text. These will be read into the record.

3.     The expert can use the excerpts to clarify terminology or ambiguities in his or her report or use the excerpts to make the report more understandable, and the expert can adopt the excerpts as his or her own. I acknowledge that, to be more understandable, different reports may require different applications of this approach.

4.     The article or text itself will remain an exhibit for identification and is not evidence.

5.     Any hearsay issues will be decided as set out in the Mazur judgment.

6.     The expert is not permitted to give a new opinion or adopt an opinion other than the one in his or her report.

7.     If it is not clear, the expert may be cross-examined on any part of his or her evidence.


$150,000 Non-Pecuniary Damage Assessment in Polytrauma Injury Case

September 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in a vehicle collision.

In today’s case (Chappell v. Loyie) the Plaintiff was injured when his motorcycle was struck by the Defendants vehicle in an intersection collision.  He suffered numerous injuries, some of which resolved others which caused ongoing disability.  In assessing non-pecuniary damages at $150,000 Madam Justice Fisher provided the following reasons:

[176]     I find that Mr. Chappell sustained the following injuries as a result of the accident:

a)       injuries to his feet and ankles which caused severe pain initially and substantially resolved within about four months;

b)       soft tissue injuries to the back and neck with chronic, ongoing pain that affects his level of activity and his ability to cope with his other injuries;

c)       carpal tunnel syndrome in the left hand, which caused significant pain over time but resolved within a month following carpal tunnel release surgery in November 2012, with an 80% risk that he would have developed carpal tunnel in his left hand in any event;

d)       headaches that are cervicogenic in origin and have become chronic partly as a result of his long term use of pain medication;

e)       injury to the previously reconstructed ACL in the left knee, which caused it to eventually dissolve and require replacement and which continues to cause intermittent pain, but with a 20% risk of damage to the reconstructed ACL regardless of the accident;

f)        injury to the rotator cuff in the right shoulder that eventually required surgical repair, which has substantially resolved but continues to cause intermittent pain, but with a 20% risk of re-injury in any event and an 80% risk of problems in the right shoulder due to degenerative problems, some of which are now present;

g)       a mild TBI that did not cause significant symptoms and resolved within about two months following the accident; and

h)       severe depression and anxiety that developed over a year after the accident, is ongoing, and may improve with concentrated treatment.

[200]     Mr. Chappell’s multiple injuries are serious and cumulative, the prognosis for a pain-free existence is poor, and their effect on Mr. Chappell’s life has been profound. His colleagues and friends who testified described him before the accident as a positive, active “larger than life” individual who was “happier building a fence for you than watching a movie”. He was known for his strength. Tab Buckner, one of his oldest friends who worked with him in construction, said he was very physical, proficient and could think outside the box. Steve Raby, one of his fellow firefighters, described Mr. Chappell as “one of the biggest, strongest people” he knew, a happy person who liked to socialize, and “not a complaining kind of guy”. Todd Roberts, another firefighter and hunting friend, said that Mr. Chappell organized all the gear for their hunting trips and all he had to do was “jump in the truck”. Mr. Chappell’s wife, Cheryl Ann, testified about the deep happiness and intimacy they had found together, the joys and challenges of blending their families and their common interests in home renovation projects. She said that her husband loved his work as a firefighter, could do “pretty much anything” when it came to renovations, and was very particular about his lawn and garden.

[201]     The picture painted by these witnesses of Mr. Chappell after the accident stands in stark contrast to these descriptions. They all said that Mr. Chappell is no longer active, doing either construction work, hunting or social activities, and the most he does is to take an advisory role in projects. Many thought he was coping with what they perceived as pain and fatigue. Todd Roberts described his activity level as “next to none” and his personality as drastically changed, “he just seems his mind is elsewhere”. Tab Buckner noticed that Mr. Chappell had difficulty getting in and out of chairs, could barely move at times, seemed angry with the world, and was not coping well with his wife and stepsons. Anthony Tanner, his oldest stepson, observed that the relationship between his mother and Mr. Chappell had become more strained. Mrs. Chappell described the course of Mr. Chappell’s injuries and recovery since the accident, his obvious pain, his growing frustration and then sadness at his lack of progress, and the personal difficulties that developed between them as he became more irritable, impatient and argumentative. There is no longer any intimacy in their relationship, which is obviously a very difficult issue for both of them.

[202]     I found all of these witnesses to be honest and straightforward, but Mrs. Chappell was quite exceptional. Throughout her testimony she was responsive and respectful, and while of course she was supportive of her husband, she did not overstate the positive or understate the negative. Her evidence was entirely consistent with Mr. Chappell’s evidence about the nature and quality of their lives together and what has happened to their relationship since the accident.

[203]     All of this evidence is consistent with how I have already described Mr. Chappell: after five years of dealing with his physical injuries, he is a broken man, emotionally isolated, suffering in constant pain, ashamed of his physical limitations and his inability to cope, and desperate for solutions.

[204]     Moreover, by June 2012, Mr. Chappell was forced to give up his career as Captain of Suppression and abandon his ultimate goal of becoming Battalion Chief of Suppression. This loss of a job he loved caused him great personal distress. As I indicated above, while there was a measureable risk that he would have had to do this at some point in any event, this change occurred much sooner than it would have absent the accident. I will come back to this when I address future loss of capacity.

[205]     In these circumstances, I award of $150,000 for non-pecuniary damages, after taking into account the extent of the risks outlined above that some of Mr. Chappell’s conditions would have occurred regardless of the accident.

“Cut and Paste Affidavit” Derails Defence Medical Exam Application

September 20th, 2016

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.

In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.