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This 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.
April 21st, 2015
Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.
In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision. The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured. The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work. In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:
 Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch. In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo. A longer explanation was provided in his report:
Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.
 He concluded that this was caused by the accident:
Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…
 …I accept Dr. Longridge’s report and conclusion.
 A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118. In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch. That impaired his ability to work as a computer programmer by 50%. His previous activity level was curtailed, as was the nature and extent of his outdoor activity level. Damages were assessed at $90,000. Based on that, I assess general damages at $90,000.
April 20th, 2015
Sensible reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, confirming that the standard of proof does not change for a tort claim based on subjective soft tissue injuries.
In last week’s case (Rabiee v. Rendleman) the Plaintiff was involved in a 2008 rear end collision. The Defendant admitted fault but disputed injury pointing in part to the fact that the collision was minor. In accepting the Plaintiff sustained soft tissue injuries and assessing non-pecuniary damages at $40,000 Madam Justice Sharma provided the following comments about the standard of proof in low velocity impact prosecutions:
 Given the findings of fact above, I am satisfied that the plaintiff has established on a balance of probabilities that the accident caused soft tissue injuries. The accident was clearly “a cause” of the soft tissue injuries…
 The defendants emphasize that Ms. Rabiee’s injuries were very mild and that there is little “objective” evidence of her injuries. They rely on Price v. Kostryba (1982), 70 B.C.L.R. 397 at 399 (S.C.) where McEachern C.J. quoted his own words in Butler v. Blaylock,  B.C.J. No. 31 (B.C.S.C.) that “the court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery” and that no one can expect citizens to be responsible for compensating a plaintiff “in the absence of convincing evidence.”
 I do not take these quotes to mean that a stricter standard of proof applies where the main evidence about injury comes from a plaintiff’s subjective reports to doctors and testimony in court. The standard of proof does not change and it does not matter if the evidence is “objective” or “subjective”. In fact, after considering the above quotation, the Court of Appeal in Butler v. Blaylock,  B.C.J. No. 1490 (B.C.C.A.) clarified: “It is not the law that if a plaintiff cannot show objective evidence of continuing injury that he cannot recover. If the pain suffered by the plaintiff is real and continuing and resulted from the injuries suffered in the accident, the plaintiff is entitled to recover damages.”
 The key consideration is whether the evidence, as a whole, establishes that the plaintiff’s injuries were caused by the defendant’s negligence on a balance of probabilities. I have concluded that Ms. Rabiee has met that burden. Thus, the fact that the evidence of her injuries is based largely on subjective reports does not detract from the application of the Stapley factors…
71] Taking into account all of the cases and my conclusions about the evidence in this case, I find Ms. Rabiee is entitled to $40,000 for non-pecuniary damages.
April 15th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry addressing fault for an intersection collision between a motorist and a cyclist.
In today’s case (Matkin v. Hogg) the Plaintiff was travelling on a bicycle Northbound on Blanca Street in Vancouver. At the same time the Defendant was operating a vehicle travelling in the same direction. While the Defendant was turning at a stop sign controlled intersection the Plaintiff drove past the vehicle and both collided. The Defendant did not signal his intended turn and the Plaintiff failed to appreciate there was a stop sign at the intersection. In finding the cyclist 65% at fault with the motorist shouldering 35% of the blame Mr. Justice Kent provided the following reasons:
 Adopting a robust and pragmatic approach to the evidence and to the circumstances of the collision, I find as a fact that the following sequence of events occurred:
• Mr. Hogg’s vehicle was parked on the eastside of the road approximately halfway down the block between 2nd Street and Drummond Drive;
• While it was not completely dark, it was dusk and the street lights were on;
• Mr. Hogg started his vehicle, thereby illuminating his running lights, and also turned on his headlights and checked his mirrors before pulling out onto the road;
• When he checked his mirrors he did not see any of the cyclists further up Blanca Street;
• He travelled north, slowed at the stop sign, likely performed a rolling stop in the absence of any visible traffic from any other direction and once in the intersection started to make a turn to the left in order to complete his intended turn-around maneuver;
• In the meantime the plaintiff was proceeding northbound down the hill on the Blanca Street towards the intersection and towards Mr. Hogg’s car at approximately 20 km/hr;
• She was unaware of the existence of a stop sign at the intersection and had not noticed the “stop sign ahead” sign posted further up Blanca Street;
• Thinking there was no traffic around him, Mr. Hogg did not activate his left turn signal before starting his u-turn maneuver;
• As she approached the intersection on her bike, the plaintiff formed the impression that the Hogg vehicle ahead of her was going to continue through the intersection in a northbound direction on Blanca Street;
• At the time she was travelling faster than the Hogg vehicle and the distance between them was closing rapidly;
• She did not see the stop signal, did not in fact stop or brake, but simply continued to ride over the putative stop line and into the intersection intending to travel north beside or close behind the Hogg vehicle;
• When the Hogg vehicle started its left turn maneuver in the intersection, the plaintiff simply had no time to take any effective evasive maneuvers and her bike collided with the front left fender of the Hogg vehicle in the vicinity of the wheel well, launching her from her bike and onto the road; and
• Mr. Hogg either did not check his mirrors at the stop sign and before commencing his turn, or did so and simply failed to see the plaintiff on her bike travelling behind him, but either way there was sufficient illumination from the diminishing daylight and the illuminated street lamps for her to have been visible to Mr. Hogg.
 It follows from these findings of facts that the collision was caused by the actions of both the plaintiff and the defendant. What remains is the manner in which fault should be ascribed and allocated between the two…
 In terms of assessing the relative degrees of fault of the parties, I conclude that the plaintiff’s conduct attracts more blame than that of the defendant’s. Both had similar duties of care vis-à-vis each other but the plaintiff was particularly careless of her own safety. Riding a bike at night on city streets without a light and without a helmet creates a grave risk indeed. It was also deliberate rather than accidental conduct on her part. Further, since she was behind the Hogg vehicle for some period of time before the actual collision, she had a greater opportunity to prevent the accident.
 Pursuant to s. 6 of the Negligence Act the determination of degrees of fault is a question of fact. Based on the totality of the evidence and the considerations referred to above, I find as a fact that the fault for causing this accident rests 35% with the defendant and 65% with the plaintiff herself. Whether that allocation of fault to the plaintiff should be further increased (and the defendant’s liability to make good plaintiff’s loss should be further reduced) by further conduct on her part which increased the extent of loss or injury arising from the accident, e.g. the failure to wear a helmet, is a matter the parties have agreed will be determined at the trial of the damages portion of the case.
April 13th, 2015
Adding to this site’s archived case summaries of non-pecuniary awards for wrist injuries, reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a chronic wrist injury.
In today’s case (Ozeer v. Young) the Plaintiff was riding as a passenger in a vehicle that ran head on into a hydro pole. He suffered some soft tissue injuries which resolved without issue. He also suffered a wrist injury which required multiple surgeries and continued to pose problems. In assessing non-pecuniary damages at $95,000 Mr. Justice Saunders provided the following reasons:
 In short, in addition to relatively mild or mild-to-moderate soft tissue injuries, Mr. Ozeer has sustained a severe wrist injury resulting in significant restriction in the use of his dominant hand that will be permanent. He has undergone two surgeries directly attributable to the accident, with an extended recovery period, and will probably have to undergo another surgery to fuse the wrist. He has continued to suffer pain and discomfort to varying degrees. I infer the pain and discomfort will likely only worsen due to the onset of arthritis…
 Of the cases cited, the facts in Ferguson bear the closest resemblance to the present case. The 37-year-old plaintiff in Ferguson suffered injuries to his neck, back and left wrist. His neck and back problems resolved within weeks, but his wrist injury persisted, requiring three surgeries. A report prepared by an orthopaedic and hand surgeon concluded that the plaintiff would be left with permanent weakness in his left hand and he would require job retraining as the injury would probably permanently prevent him from returning to his job as a heavy duty mechanic. Madam Justice Gill awarded the plaintiff $75,000 in non-pecuniary damages.
 I award Mr. Ozeer non-pecuniary damages of $95,000.
April 7th, 2015
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing injuries.
In today’s case (Dhaliwal v. Pillay) the Plaintiff was involved in two collisions, the first in 2010, the second in 2011. The Defendants admitted fault for both crashes. Prior to the collisions the plaintiff fell off a ladder and injured his neck and back and had ongoing symptoms from this injury. The Court found the collisions aggravated these pre-existing injuries. In assessing non-pecuniary damages at $50,000 Mr. Justice Truscott provided the following reasons:
 I am completely satisfied from the medical evidence that Mr. Dhaliwal hurt his back and neck in the 2008 ladder fall and it caused him significant continuing pain right up to and including to the time of the first motor vehicle accident.
 It is my conclusion the two motor vehicle accidents only aggravated or exacerbated his existing active back and neck pain that preceded the first accident.
 The applicable law has been set out by the Supreme Court of Canada in Athey v. Leonati,  3 S.C.R. 458 where Mr. Justice Major, writing for the Court, said this at p. 473:
The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.
 Mr. Dhaliwal has pre-existing active back and neck pain which was due to degenerative changes in his spine and injury from the ladder fall, as well as arthritis in his hands and knees, and with Mr. Dhaliwal having only aggravated his back and neck pain in the two motor vehicle accidents and sustained headaches and right groin pain and right ankle pain, I consider an appropriate award for pain and suffering to be $50,000.
April 2nd, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain condition stemming from collision related soft tissue injuries.
In today’s case (Karim v. Li) the Plaintiff was injured in a 2011 collision. The defendant accepted fault for the crash. The Plaintiff suffered various soft tissue injuries which, coupled with psychological consequences, resulted in an ongoing chronic pain condition. In assessing non-pecuniary damages at $100,000 Mr. Justice Abrioux provided the following reasons:
(a) prior to the Accident, Mr. Karim was a hard-working and industrious man who had overcome significant obstacles in his past. He was satisfied with his life both personally and professionally;
(b) Mr. Karim’s “original position” included a significant difficulty with stuttering which, although considerably improved from what it had been in the past, was in a fragile or vulnerable state. Had the Accident not occurred, regression was likely were he faced with stressful conditions either in his personal or vocational life;
(c) although I found the plaintiff generally to be credible, he has embellished certain events. For example, he advised Dr. Nader that the defendants’ vehicle was travelling at approximately 80 kph when it struck him. Common sense leads to the conclusion that his vehicle would not have been drivable after the Accident had this been the case and that emergency vehicles would have attended the Accident scene, neither of which occurred. There are also examples of embellishment in his work and educational history;
(d) the plaintiff has a tendency to see things in their worst light. Dr. Gouws characterized this as “pain catastrophization”. This has resulted in the perception that he is much more disabled from a pain and functioning perspective than he is in reality;
(e) the plaintiff sustained moderate to moderately-severe soft tissue injuries in the Accident. He was essentially totally incapacitated from a physical perspective for a period of approximately one year and at intermittent times thereafter. As such, his condition, which includes psychological factors, does satisfy the criteria for “chronic pain” being pain that persists for more than six months. The psychological factors have had a significant negative effect on his ability to recover;
(f) despite the plaintiff’s presentation and the history he has provided to the various professionals who have assessed him, he is capable of much more than what he perceives. I accept Dr. Gouws evidence in cross-examination to that effect;
(g) a component of the plaintiff’s perception of his inability to function may be his psychological makeup. He has, however, demonstrated the ability to overcome disability through his own resources or willpower. An example is his ability to control his stuttering to which I have referred above;
(h) with appropriate professional assistance including a further intensive course at Columbia together with a 16 session cognitive behavioural therapy program as recommended by Dr. Riar, Mr. Karim will largely return to his level of personal and professional functioning experienced prior to the Accident; and
(i) in that regard, I accept Dr. Gouws’ and Dr. Paramonoff’s opinions which identified “catastrophization” and “confounding factors” as the main limitation to Mr. Karim’s recovery. This is the basis for their recommendation that he obtain psychological assistance….
 Based on my findings of fact, I am satisfied that Mr. Karim, who was 25 years old at the time of the accident, suffered moderate to moderately-severe soft tissue injuries at the time of the accident which resulted in physical and psychological consequences. The stress of these injuries also aggravated the significant stuttering condition which existed prior to the Accident. I also find that the consequences of the Accident were instrumental in the termination of his relationship with Ms. Azimi which resulted in an increase in his stress and greatly affected his quality of life for a period of time.
 I have also found that with an appropriate course of treatment both physical and psychological that Mr. Karim should largely return to his pre-Accident level of functioning. Thereafter, there will still, in my view, be some occasions in the future when the consequences of the Accident will affect the plaintiff both professionally and personally.
 I conclude that the authorities referred to by the defendants in particular Andrusko resemble more closely the plaintiff’s circumstances. But that award of $80,000, in my view, should be increased to reflect the contribution that the Accident had on the plaintiff’s relationship with Ms. Azimi. The award should also reflect that although I have concluded that the plaintiff does have the ability to overcome his negative perceptions of how the Accident has affected his life this will take some real effort on his part.
 I award the plaintiff $100,000 under this heading.
April 1st, 2015
Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder injury caused by a collision.
In today’s case (Gaudrealt v. Gobeil) the Plaintiff was involved in a ‘forceful‘ rear-end collision in 2009. He suffered various injuries the most serious of which was a chronic shoulder pain. In assessing non-pecuniary damages at $75,000 Mr. Justice Thompson provided the following reasons:
 I find that most of the right shoulder abnormalities shown by the X-ray and MRI imaging pre-date the MVA. I conclude that the superficial tearing of the bursal surface of the supraspinatus tendon and the biceps tendinitis is a direct result of the MVA. The other right shoulder changes were pre-existing, albeit asymptomatic and rendered symptomatic by the MVA.
 The medical evidence firmly supports the conclusion that the MVA has put the plaintiff in a position where he ought not to do physical construction work. However, I do find that if the MVA had not happened, there is a measurable risk that the asymptomatic pre-existing right shoulder abnormalities would have progressed and at some point interfered with the plaintiff’s ability to do this heavy type of work. Doing the best I can with the evidence available, I think this contingency to be on the order of a 50% risk within ten years.
 There is a chance that Mr. Gaudreault will need rotator cuff surgery to repair MVA-related damage, but I think this is unlikely. He seems disinclined to that alternative. If he continues to stay away from heavy physical work, I think it is highly likely that he will avoid surgery…
 The proper approach to the assessment of non-pecuniary damages is well-settled and is encapsulated in the often-cited passage at paras. 45-46 in Stapley v. Hejslet, 2006 BCCA 34 at paras. 45-46. The plaintiff urges an award of $125,000, emphasizing the expected permanency of his partial disability, the chance that shoulder surgery will be necessary, the interruption of his ability to work without restriction, and the impact on his enjoyment of golf and tennis. The defendants submit that $40,000 would be proper compensation. They emphasize that shoulder problems may have emerged in any event of the MVA. They submit that the plaintiff has taken no therapy treatment in the past two years, he has taken no pain medications since the year following the MVA, and he no longer sees his family doctor for his MVA-related complaints — all of which indicate that the plaintiff is not in a great deal of pain. They contend that there has been little in the way of lifestyle interruption, pointing to the plaintiff’s ability to continue to referee soccer and the plaintiff’s admission that it is unlikely that he would have spent much time golfing or playing tennis in the busy years since the accident.
 The plaintiff cites White v. Wiens, 2015 BCSC 188 ($100,000); Ostrikoff v. Oliveira, 2014 BCSC 531 ($105,000); Morlan v. Barrett, 2012 BCCA 66 ($125,000); Dycke v. Nanaimo Paving and Seal Coating Ltd., 2007 BCSC 455 ($125,000); and Power v. White, 2010 BCSC 1084 ($135,000). The defendants cite Jordan v. Lowe, 2012 BCSC 1482 ($35,000); McKenzie v. Mills, 2013 BCSC 1505 ($40,000); Bissonnette v. Horn, 2012 BCSC 518 ($50,000); Jorgensen v. Coonce, 2013 BCSC 158 ($60,000); and Bansi v. Pye, 2012 BCSC 556 ($75,000).
 There is no question that Mr. Gaudreault has suffered a permanent partial disability that interferes with his work capacity, but he is not experiencing the degree of pain, emotional disturbance and interference with his lifestyle featured in the cases cited by his counsel. I fix the plaintiff’s non-pecuniary damages at $75,000.
March 26th, 2015
Update April 1, 2015 – I am advised that the below decision is presently under appeal
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, leveling sanctions against a Plaintiff in a personal injury lawsuit for not complying with Court document production orders.
In the recent case (Badreldin v. Swatridge) the Plaintiff was injured in a 2010 collision. The Plaintiff was a physiotherapist and claimed diminished earning capacity. The Defendant obtained Court orders for production of records relating to the Plaintiff’s business losses and these were not wholly complied with. The Defendant asked that the Plaintiff’s action be dismissed but the Court noted this was too harsh of a remedy. In ordering a $25,000 fine to be paid Master Harper provided the following reasons:
 The defendant has been put through too much extra time, trouble, and expense in its efforts to limit the order just to compel the plaintiff to produce the documents and information. There has been a persistent pattern of non-compliance. The plaintiff has downplayed his responsibility for the non-compliance with the two court orders. As he has had legal counsel throughout, there is no excuse for his not understanding his responsibilities.
 The production of the documents and information that did occur at the last minute and over a short period of time shows that it was possible to produce the documents and information in a timely fashion.
 I find, therefore, that there has been no lawful excuse for the plaintiff’s non-compliance with the two court orders. I must now consider the sanction…
 In my view, the sanction has to be sufficient to bring home to the plaintiff the point that court orders must be obeyed. In addition, the defendant is entitled to be compensated for the time, trouble, and expense of dealing with this issue, as well as the prejudice caused by the late production of documents and information, and the uncertainty with respect to how the work calendars are going to be used. There is a looming trial date of March 16, 2015. It is uncertain at this point as to whether the trial will go ahead. The loss of a trial date because of this late production is an additional prejudice to the defendant.
 So balancing all of those factors, in my view, a sanction of $25,000 would be appropriate. I therefore order that the plaintiff pay to the defendant the sum of $25,000. The $25,000 will be used to offset against any settlement or judgment the plaintiff receives in this action.
March 25th, 2015
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.
In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC. The Defendant admitted fault. The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve. In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:
 The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder. She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder. She has suffered from headaches since the accident, some of which are debilitating…
 The plaintiff is a young woman. More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches. Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.
 The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.
 She has become more withdrawn. Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.
 She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.
 In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.
March 25th, 2015
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that a witness who is willing to communicate through counsel should not be compelled to attend a pre-trial examination under oath.
In today’s case (Cabezas v. HMTQ) the Plaintiff was involved in a single vehicle accident and sued the Defendants claiming negligent highway maintenance. In the course of the lawsuit the Plaintiff attempted to speak with and the “Capilano defendants provided a summary of the evidence Mr. Colville was expected to give should the matter proceed to trial. She stated further: “to the extent that you still wish to speak to Mr. Colville, he has asked that this be arranged through us and that we be present.”
The Plaintiff brought an application to compel pre trial examination under oath of this witness but this was dismissed with the Court noting that a witness willing to speak through counsel is indeed being responsive. In reaching this conclusion Master Harper provided the following reasons:
 Rule 7-5(1) provides as follows:
(1) If a person who is not a party of record to an action may have material evidence relating to a matter in question in the action, the court may:
(a) order that the person be examined on oath on the matters in question in the action, and
(b) either before or after the examination, order that the examining party pay reasonable lawyer’s costs of the person relating to the application and the examination…
 Rule 7-5 sets out a protocol which must be followed before an application for an order for a pre-trial examination of a witness can be made. The applicant must establish that the proposed witness has refused or neglected on request by the applicant to give a responsive statement either orally or in writing relating to the witness’ knowledge of the matter in question or has given conflicting statements (Rule 7-5(3)(c)(i) and (ii)).
 The fact that the witness has chosen to communicate through counsel does not amount to a refusal to give a responsive statement (Rintoul v. Granger, 2008 BCSC 1852 at para. 24).
 Mr. Colville is agreeable to attending an interview in the presence of counsel.