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.

$75,000 Non-Pecuniary Assessment For Chronic Shoulder Injury

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:

[15]        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.

[16]        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.

[17]        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…

[22]        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.

[23]        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).

[24]        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.


Plaintiff Fined $25,000 For Not Complying With Document Production Orders

March 26th, 2015

Update April 1, 2015I 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:

[46]         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.

[47]         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.

[48]         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…

[53]         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.

[54]         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.


$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

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:

[3]             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…

[131]     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.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     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.

[135]     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.


No Pre Trial Examination Ordered For Witness Willing to Talk Through Counsel

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:

[4]             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…

[11]         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)).

[12]         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).

[13]          Mr. Colville is agreeable to attending an interview in the presence of counsel.


Pedestrian Struck in Cross Walk Faultless for Collision

March 23rd, 2015

Reasons for judgement were released today addressing whether a pedestrian struck in a cross walk bared any responsibility for their collision.

In today’ case (Gulati v. Chan) the Plaintiff entered a crosswalk when the Defendant motorist coasted through a stop sign and struck the Plaintiff.  The Defendant admitted partial fault but argued the Plaintiff should shoulder 10-20% of the blame for failing “to avoid his on-coming vehicle which, he maintains, was a visible and foreseeable risk to her.”  In rejecting this argument and finding the Defendant fully at fault Mr. Justice Gaul provided the following reasons:

[23]         Mrs. Gulati says she looked to her right and left before entering the crosswalk. At that time, she did not see any vehicular traffic coming in her direction. When she was approximately half way across the crosswalk she saw Mr. Chan’s vehicle approaching the nearby intersection that was controlled by stop signs. According to Mrs. Gulati, the vehicle was approximately 4 to 5 car lengths away from her when she first saw it. To Mrs. Gulati’s surprise, the vehicle did not stop at the stop sign; instead it turned left and struck her while she was in the crosswalk.

[24]         Mr. Leverett was standing at the southern end of the crosswalk, directly in front of the stop sign for the intersection. He saw Mrs. Gulati exit the Mall and stand at the northern end of the crosswalk. He saw her look both ways and then proceed into the crosswalk. According to Mr. Leverett, there was no vehicular traffic in the vicinity when Mrs. Gulati began to cross the road. Mr. Leverett saw Mr. Chan’s vehicle approach the stop sign. It appeared to Mr. Leverett that Mr. Chan was not paying attention to what he was doing, because his vehicle coasted through the stop sign. Mr. Chan’s vehicle then accelerated and collided with Mrs. Gulati who was still in the crosswalk.

[25]         Constable Lorne Smith of the Surrey RCMP attended at the scene of the Accident shortly after it occurred. While he was there, he spoke with Mr. Chan. According to Constable Smith, Mr. Chan said he had been leaving the Mall’s parkade, had not seen Mrs. Gulati in the crosswalk and had collided with her when she suddenly appeared in front of his vehicle. The officer issued Mr. Chan a violation ticket alleging that he had been driving without due care and attention and had failed to yield to a pedestrian contrary to the Motor Vehicle Act, R.S.B.C. 1996, c. 318 (the “MVA”). Mr. Chan did not dispute the violation ticket…

9]         I accept the evidence of Mrs. Gulati and Mr. Leverett with respect to how the Accident occurred. In particular I am satisfied that Mr. Chan was not paying attention when he was driving and that he did not bring his vehicle to a stop when he should have. Instead, without any notice or warning to Mrs. Gulati who was legally crossing the road, Mr. Chan proceeded through the stop sign and turned left, leaving Mrs. Gulati with no time to react and avoid the collision. It was not unreasonable for Mrs. Gulati to believe that Mr. Chan’s vehicle would stop at the stop sign and it cannot be said that a reasonable person would have anticipated his decision to breach the rules of the road in the manner that he did.

[30]         In my opinion, Mr. Chan is 100 percent liable for the Accident.


8 Year Old Too Young To Be Examined for Discovery

March 13th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defense application to examine an 8 year plaintiff.

In today’s case (Dann-Mills v. Tessier) the Plaintiff was involved in a ‘serious motor vehicle accident’ when he was 17 months old.  A lawsuit was brought on his behalf by his litigation guardian.  The Defendants sought to examine the Plaintiff for discovery.  The Court found that this would be inappropriate and dismissed the application.  In doing so Mr. Justice Voith provided the following reasons:

[38]        I question the possible utility or value of any examination for discovery of Jorin, particularly in light of some of the medical conclusions I have identified. It was this issue that I canvassed most fully with counsel for the applicant.

[39]        It is generally understood that the central objects of an examination for discovery are:

i)        to enable the examining party to know the case it must meet;

ii)        to enable a party to procure admissions which will dispense with other formal proof of its case; and

iii)       to procure admissions which will damage an adversary’s case.

See e.g. Frederick M. Irvine, ed., McLachlin & Taylor, British Columbia Practice, loose-leaf, 3rd ed. (Markham: LexisNexis, 2006) at 7-178.

[40]        The applicant and other defence counsel accepted that they had no desire to obtain any “admissions” from Jorin on discovery. Instead, the applicant said that the “primary reason” for Jorin’s intended discovery related to the first consideration I identified; that being, to enable the defence to know the case that it must meet.

[41]        Respectfully, I struggle to see how this can be so. This is not a case where the defendants may be surprised by Jorin’s evidence at trial. Jorin will not be present at the trial. Instead, the whole of Jorin’s case will be established by expert evidence, of which the defendants will have ample notice, and through other witnesses. The defendants can examine Jorin’s father and his grandmother (Jorin’s litigation guardian). They can interview his teachers and his special-needs assistants. In earlier applications, it became clear that Jorin, who requires full-time supervision, has had a series of caregivers. These sources are likely to be far more fruitful and reliable than the examination for discovery of an infant who, there is reason to believe, without deciding that it is so, struggles with comprehension, attention and language difficulties.

[42]        The last basis for an examination of Jorin that was raised by counsel for the applicant was a desire, in a sense, to see Jorin and how he functions. There is significant disparity in the existing medical opinions on Jorin’s functionality. I have referred to some of these differences earlier in these reasons. Other differences are apparent in the letters of Drs. Purtzki and Joschko, respectively. Counsel considers that some opportunity to see and interact with Jorin would potentially be helpful for settlement and other purposes.

[43]        First, it would appear that a discovery of Jorin would only achieve this object for the single counsel who conducted the examination for discovery, and not for the teams of counsel who represent the various defendants in this action. I cannot imagine that the intention would be to conduct the examination in the presence of all counsel who are involved in these actions.

[44]        Second, though I do not question counsel’s expressed goal, I consider that this object can be otherwise achieved. I suggested to counsel that Jorin might be videotaped, or that counsel might possibly view Jorin, at a medical examination, through a glass mirror. Though counsel for Jorin indicated he would not be opposed to such endeavours, I was also told by counsel for the defendants that the examining independent medical practitioners might object. Nevertheless, I consider that with some ingenuity there are far better means available to get a sense of Jorin and his functionality than a brief examination for discovery would yield.

[45]        In all the circumstances, I do not consider that an examination for discovery of Jorin would be appropriate, and I am unprepared to allow that examination to take place.


Facebook Posts Derail Personal Injury Claim

March 11th, 2015

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting aspects of a personal injury claim in part due to postings from the Plaintiff’s Facebook page.

In today’s case (Tambosso v. Holmes) the Plaintiff was involved in two collisions.   The Plaintiff claimed significant injuries and sued for damages.  Mr. Justice Jenkins accepted the Plaintiff suffered some injury in the collisions but largely rejected the Plaintiff’s claim.  In doing so the Court relied heavily on the Plaintiff’s postings on Facebook  which the Court found were “completely inconsistent with the evidence the plaintiff gave at trial”.  Mr. Justice Jenkins provided the following reasons:

[170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172]     It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173]     Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:

a)    The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her  manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there  . . . with bells on!  xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

b)    Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

c)     The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

[174]     I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.


BC Court of Appeal – Scientific Evidence Not Needed in LVI Injury Claims

March 10th, 2015

Reasons for judgement were released today by the BC Court of Appeal (Pacheco v. Antunovich) overturning a trial judgement which dismissed an injury claim following a so-called low velocity impact.  The Court found the trial judge made palpable and overriding errors in his assessment of the evidence.  In reaching this conclusion the Court of Appeal provided the following comments:

[35]         As previously noted, the judge found the appellant’s claim of injuries arising from the accident not to be reasonable or credible in the absence of independent or scientific evidence of how the mechanics of such a minor collision could have caused the injuries claimed. With respect, in my view the judge erred in finding that the appellant only “thought” her car was pushed forward in the collision when she in fact said that it was pushed forward (although she did not know how far). He also misapprehended her evidence that the collision caused two black dents to her bumper by describing them as “two small scratches” (a description advanced by defence counsel). He did not consider or he overlooked the appellant’s evidence that at the time of the collision her hands were on the steering wheel and her right foot on the brake, and how that positioning of her body might be relevant to the mechanics of the collision and her subsequent complaints of lower back and right side gluteal pain. Most significantly, however, he appears to have ignored the opinions of each of the appellant’s doctors that her lower back and right side gluteal pain were caused by the collision, which the respondents did not counter by any evidence to the contrary…

[43]         The need to carefully examine any inconsistencies and contradictions in a plaintiff’s evidence, with the evidence as a whole, before rejecting that party’s evidence based on demeanor alone, was echoed in Jezdic. In that case, which also involved a minor collision, Sigurdson J. dismissed the action based on a negative assessment of the plaintiff’s credibility. That assessment, however, included identifying “significant inconsistencies” in the plaintiff’s evidence, both internally and with his findings of fact (para. 41), noting all the while that “there is no rule of law or physics that a person cannot be injured in a low speed collision” (para. 33).

[44]         In this case, the judge did not assess or find any inconsistencies or contradictions in the appellant’s evidence, either internally within her evidence or with other established facts. With respect, his findings of credibility seem to be driven, in large part, by his inference from the appellant’s demeanor at trial that she was exhibiting pain exaggeration behaviour and, also, from his erroneous findings of fact as noted above.

[45]         In the result, the appeal must be allowed and a new trial ordered.


Trial Venue Not Changed Due to “Overwhelming Cost of Expert Evidence”

March 9th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a change of venue application due to the ‘overwhelming cost of expert evidence‘.

In today’s case (Gaebel v. Lipka) the Plaintiff was injured in a 2011 collision which occurred in Powell River.  Both the Plaintiff, Defendant and some lay witnesses resided in Powell River.  The trial was scheduled to take place in Vancouver where the majority of expert witnesses involved in the case practiced.  The Defendant argued the trial ought to be moved to Powell River given the location of the majority of lay witnesses.  Master Muir dismissed the application citing a concern of the cost of producing experts to attend the out of town location.  In dismissing the application the Court provided the following reasons:

[9]             As I said, the plaintiff and defendants reside in Powell River. One of the employers resides in Powell River.

[10]         However, there are other witnesses that reside in Nanaimo, Campbell River, Langley, and then there is the question, of course, of experts. The majority of the experts, if not all of them, will be attending from Vancouver…

[14]         The costs of having experts travel to give evidence, even if they are willing or available to do so, is considerably greater than that of lay witnesses.

[15]         There was an issue as to the appropriateness of a jury trial given that the plaintiff resides in Powell River. The plaintiff was concerned that he would not be able to get a jury that was unfamiliar and unbiased with regard to the events in issue.

[16]         The defendants take that by the horns and advise that they will not have this matter tried as a jury trial if it proceeds in Powell River. So that is no longer a consideration.

[17]         The primary position advanced by the defendants was that the costs of the lay witnesses and the convenience to the plaintiff’s employer and others coming from Powell River overwhelmingly overbalance the plaintiff’s right to have the trial in Vancouver.

[18]         The plaintiff disputed that and, as I noted, provided evidence of where other witnesses actually reside. It appears that there are a number of witnesses who, although they may work occasionally in Powell River, do not reside there.

[19]         Given the overwhelming cost of expert evidence, it is my view that the test has not been met and the application is therefore denied.


Responsive Report Rule “Is Not a Licence” For Failing to Prepare Expert Evidence

March 9th, 2015

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.

In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages.  The alleged injuries included a concussion.  In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues.  As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision.  The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports.  Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:

[19]         Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.

[20]         A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke,  satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.

[21]         However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787  at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…

[31]         A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.

[32]         The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.

 


 

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