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 Court of Appeal – Lawyers Using “ICBC” in Domain Name Does not Confuse Consumers

July 22nd, 2014

Reasons for judgement were released today by the BC Court of Appeal confirming that plaintiff lawyers can use “ICBC” in their website domain name and that this does not lead to consumer confusion.

In this week’s case (ICBC v. Stainton Ventures) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.   This argument was dismissed at trial.  ICBC appealed arguing “the relevant consumer, having the familiarity but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice on its business, wares and services, when viewing such marks as a matter of first impression”.ICBC 

The BC Court of Appeal disagreed and dismissed ICBC’s appeal.  In doing so the Court provided the following reasons:

[37]         I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name.  Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name.  They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business.  As well, they understand that it is necessary to view a website to determine whose site it is.  While I appreciate that Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, involved a dispute over a trade-mark rather than an official mark, it is noteworthy that the Court attributed a reasonable level of intelligence to “the casual consumer somewhat in a hurry”:  paras. 56-58.  In the present context, to paraphrase a passage from Michelin & Cie v. Astro Tire & Rubber Co. of Canada Ltd. (1982), 69 C.P.R. (2d) 260 (F.C.T.D.), quoted with approval in Mattel, Inc., one must not proceed on the assumption that average Internet users are completely devoid of intelligence or of normal powers of recollections or are uninformed as to what goes on around them.

[38]         ICBC submits this Court must be cautious to avoid failing to differentiate the test applicable to official marks from the “source confusion” test applicable to trade-marks under s. 6 of the Trade-marks Act.  In its oral submissions it repeatedly adverted to the need to avoid applying the “source confusion” test in the context of official marks.  While different tests do apply, it must be kept in mind that any mark, including an official mark, serves an identification function, whether as to source, endorsement, or otherwise.  ICBC’s submission that “the relevant consumer, having the familiarly but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice”, suggests that ICBC appreciates that one of the objectives of the official-marks regime is to protect the public by prohibiting the use of a mark which so nearly resembles an official mark that a person seeing that mark would mistakenly believe it to be the rights-holder’s mark.

[39]         As indicated above, I am unable to accept that the average Internet user does not appreciate that domain names—which are limited to short combinations of alphanumeric characters—are often merely descriptive of the subject matter of the website to which the domain name resolves, rather than indicating affiliation, source, or endorsement.  Put otherwise, a person who conducted a search—using, for example, the terms “ICBC” and “advice”—which returned ICBCadvice.com in its list of results would not, based solely on observing that domain name, mistakenly believe that the “advice” referred to is provided or endorsed by ICBC.  Neither would they, as a matter of first impression, be mistaken by the fact that the domain name starts with “ICBC”.  The most that person would conclude is that the website likely had something to do with the corporation.

[40]         In the result, I agree with the trial judge that the website ICBCadvice.com and its related domain names do not contravene ss. 9 and 11 of the Trade-marks Act.


Defence Expert Witness Found Biased After Presenting “a Distorted Recording of his Interview” With Plaintiff

July 18th, 2014

Adding to this site’s archived cases criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing the evidence of a defense hired psychiatrist.

In today’s case (Yang v. Engen) the Plaintiff was injured in a 2011 intersection collision.  Fault was admitted by the Defendant.

The Plaintiff suffered moderate soft tissue injuries but her recovery was complicated by “ever-increasing emotional difficulties and mood disorders“.

The Defendant retained a psychiatrist who minimized the connection between the collision and these psychological difficulties.  In finding the expert witness crossed the line into advocacy Mr. Justice Davies provided the following comments:

[53]         After hearing those submissions and reviewing Dr. Levin’s original and rebuttal reports, I concluded that it was necessary to excise as inadmissible the following parts of his reports:

1)    The observation in the body of his opinion that:

It should be mentioned at the beginning of this summary that Ms. Yang’s diagnostic formulation should be viewed in the context of her interview in my office that revealed numerous discrepancies and inconsistencies between her subjectively-reported complaints of anxiety and her virtually-unimpaired social, occupational and interpersonal functioning. Ms. Yang initially omitted and under-reported her pre-existent history of psychological/emotional disturbances, attributing her current subjectively-presented complaints of “generalized” anxiety specifically and selectively to the subject MVA.

2)    The observation in Appendix C of his opinion that:

From a diagnostic perspective, however, the above-reviewed psychological clinical notes do not identify any specific PTSD symptomatology or reports of any type of generalized anxiety described by Ms. Yang during the interview in my office. It seems that Ms. Yang’s “generalized anxiety” disturbances had a somewhat rapid onset following her reported psychiatric consultation with Dr. Lu (organized by her lawyer).

[54]         I excised those paragraphs because:

1)    The excised observations in the body of his opinion not only crossed the line into an improper assessment of credibility but also constituted advocacy in the guise of expertise; and

2)    The excised observations in Appendix C demonstrated an unwarranted and unsubstantiated personal attack not only on the credibility of the plaintiff but also upon a well-qualified psychiatrist and upon plaintiff’s counsel.

[55]         I did not, however, rule that the totality of Dr. Levin’s reports should be determined to be inadmissible at that stage of the proceeding because I was satisfied that fairness to the impugned expert and to the defendant who had relied upon his evidence required that such a ruling should not be made without the benefit of hearing Dr. Levin’s evidence in chief and in cross-examination

[56]         I reached that conclusion also because of the complexities of the subject matter on which Dr. Levin was seeking to opine and in the context of the breadth of the attack by counsel for Ms. Yang upon not only his substantive opinion but also the methodology employed by Dr. Levin in rendering it.

[57]         After hearing his evidence at trial and having the opportunity to consider the totality of his evidence, including both written opinions and the entirety of his testimony at trial, I have concluded that Dr. Levin’s opinion presents a distorted recording of his interview with Ms. Yang by failing to identify with preciseness the questions which he asked of her and by his interspersed editorializing as to what answers he would have expected, all of which constituted his assessment of her lack of credibility which he then used as the basis for his diagnosis. That in turn resulted in a resort to advocacy on behalf of the defendant in relation to issues of causation and, in my view, demonstrated a personal investment in the litigation sufficient to constitute bias.

[58]         Those concerns were even more dramatically highlighted by a highly personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s opinion and professionalism in Dr. Levin’s rebuttal report delivered in response to Dr. Lu’s critique of Dr. Levin’s analysis.

[59]         In result, I have concluded that Dr. Levin’s opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible.

[60]         I must also observe that even if I had concluded that some part or parts of his opinions could be determined to be admissible, I would in any event have been required to give such opinions little or no weight because of the many shortcomings to which I have adverted.

[61]         That conclusion is also mandated because while Dr. Levin improperly questioned the veracity of many of Ms. Yang’s responses to his questions and offered his versions of what responses he would have “expected,” counsel for the defendants did not confront Ms. Yang with the alleged “inconsistencies” and “discrepancies” relied upon by Dr. Levin in rendering his opinions.

[62]         What is left is simply an array of unfounded and untested allegations of dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang as a witness.

[63]         Notwithstanding that English is Ms. Yang’s second language she is fluent in it and well able to express herself. She impressed me as a stoical, careful and honest witness who listened carefully to the questions asked of her and responded without exaggeration.

[64]         Although the anxiety she testified about now suffering related to seemingly common everyday life situations may seem wholly disproportionate to the circumstances she related in her evidence which manifest in those reactions, the totality of the evidence, including most importantly the psychological evidence of Dr. Lu to which I have referred in detail, convinces me that the anxiety she expresses is genuine.

[65]         In summary, I find that I can safely rely on the veracity of Ms. Yang’s testimony concerning the injuries she suffered in the collision, the progress of those injuries and the extent to which they have impacted her life both on a physical and emotional level.


$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries Perpetuated by Stress

July 16th, 2014

Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress.

In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision.  She was 66 at the time of the crash and 69 at the time of trial.  She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial.  A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:

209]     As mentioned, I find that the motor vehicle accident of September 3, 2010 caused injury to the soft tissues of the plaintiff’s neck and upper back and that the injury was of moderate degree. As a result of this injury, the plaintiff suffered pain in these areas and, for a limited period of time, suffered headaches. I find that the injury did not aggravate or worsen the plaintiff’s pre-existing physical conditions, but was super-imposed over them. There may have been minimal injury to the soft tissues of the plaintiff’s lower back, but if so, that injury had healed within six weeks of the accident…

[212]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck, upper back and shoulder pain as a result of the soft tissue injury she received in the car accident. It is implicit in Dr. Salvian’s opinion that he says the accident is still causing all of the pain that the plaintiff continues to experience in the soft tissues of her neck, upper back and shoulders. I have rejected that all-encompassing opinion. Dr. Kemble seems to say that most of the soft tissue pain that the plaintiff continues to experience in her neck, upper back and shoulders is being caused (intensified and perpetuated) by her emotional distress (and he says that the emotional distress was a pre-existing condition and was not caused by the accident). I have not accepted those opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.

[213]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff will continue to suffer physical symptoms as a result of her injury, for an indefinite period of time into the future (although they differ as to the frequency and intensity of such symptoms).

[214]     I accept Dr. Kemble’s opinions to the extent previously identified. I find that some of the plaintiff’s ongoing symptoms of pain in her neck, upper back and shoulders are being caused by the injury from the accident. And I find that she will continue to experience episodes of increased pain in the future, as a result of her injury on September 3, 2010.

[215]     I find that the plaintiff had a pre-existing condition of emotional distress which was affecting her to some extent at the time of the accident. I find also that the plaintiff’s experience of being involved in the motor vehicle accident, her physical injury, and her emotional reaction to that injury caused additional emotional distress to her. That emotional distress adversely affected the plaintiff’s powers of concentration and memory for at least a year, and perhaps longer. However, the effects of the plaintiff’s distress on her memory and concentration was minimal (almost non-existent) by the end of May 2011 when she was examined by Dr. Allison. The plaintiff was continuing to feel emotional distress at the time of trial, and I find that some of that ongoing stress is being caused by the accident of September 3, 2010…

[233]     In all of the circumstances, it is my opinion that a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount.

 

 


ICBC Rate Hike Letter to PolicyHolders Does Not Taint Injury Claim Jury Pool

July 14th, 2014

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing whether ICBC should lose the right to trial by jury due to a letter they sent their policy holders blaming increased insurance rates on ‘rising injury costs’.

In today’s case (Yates v. Lee) the Plaintiff was injured in a 1998 collision.   He was 6 years old at the time.  His matter was set for trial in February, 2015 and ICBC, the insurer for the Defendant, elected to proceed via jury trial.  The Plaintiff argued that the Court should use its inherent jurisdiction to strip ICBC of their right to jury trial suggesting that the letter ICBC sent their policy holders “has tainted the jury pool by creating a real potential for bias against plaintiffs among jurors who are policy holders“.  Mr. Justice Pearlman disagreed finding there was no reason for the Court to use its inherent jurisdiction and the trial judge could deal with any suggestion of bias.  In reaching this decision the Court provided the following reasons:

[12]         Shortly after November 1, 2013, ICBC began including in the insurance renewal notices sent to each of its policy holders the following statement:

          ICBC Rate Changes:

Rising injury costs mean we’re asking the British Columbia Utilities Commission (BCUC) for 4.9% increase to Basic insurance rates. The BCUC has approved an interim rate increase of 4.9% effective November 1, 2013 and will make a final decision after a public hearing process. If a final approved rate differs from the interim rate, your Basic premiums will be adjusted for the difference, subject to the BCUC’s final Order. We are also able to reduce our optional rates to lessen the impact on you.

[13]         The renewal reminder also included a statement of the insured’s estimated total premium for the year…

[53]         Here, at best, the material filed by the plaintiff goes no further than establishing a possibility for bias on the part of some prospective jurors who are  ICBC policyholders. In addition to relying on the renewal notice itself, the plaintiff referred to Norsworthy v. Green, (30 May 2009), Victoria Registry 06 2644 (B.C.S.C.).  There, Macaulay J. commented, obiter, that every potential juror knows that ICBC funds damages awards, and that this creates the risk that prospective jurors may believe the higher an award in a given case, the greater the likelihood that their own insurance premiums may rise. Macaulay J. observed that such thinking is improper, and would, if disclosed, demonstrate bias. The plaintiff also filed newspaper and Internet articles referring to Shariatamadari v. Ahmadi (4 May 2009), Vancouver Registry S061583 (B.C.S.C.), where the trial judge’s investigation into complaints of juror misconduct revealed that one of the jurors, during deliberations, had expressed concern that a high damage award would drive up their own auto insurance rates. This material falls well short of establishing that a real potential exists in the circumstances of this case that some jurors may be incapable of setting aside any prejudice they may have as a result of the renewal notice, and deciding this case impartially, after receiving appropriate instructions from the trial judge.

[54]         Even if this court had the inherent jurisdiction to strike a jury notice for juror partiality, I would decline to exercise that jurisdiction in the circumstances of this case for the following reasons:

(a) the court is asked to find that ICBC’s communication to its policy holders through the renewal notices constitutes prejudicial pre-trial misconduct in the absence of an adequate evidentiary foundation;

(b) to grant the relief sought would skirt the challenge for cause process by having the court make a determination of juror partiality without requiring the plaintiff to satisfy both branches of the well-established test for juror partiality, and without any inquiry to determine whether particular members of the juror pool selected for this case could not serve impartially; and

(c) another decision-maker, the trial judge, has all the powers necessary to ensure trial fairness…

[59]         Chester provides further support for my conclusion that the plaintiff’s assertion of juror partiality is a matter which, if pursued, must be raised before the trial judge for determination through the challenge for cause process, rather than before a chambers judge who has neither the inherent jurisdiction to grant the relief sought, nor an adequate evidentiary foundation on which to do so.


Formal Offer on Eve of Trial Not “Too Late” To Trigger Costs Consequences

July 14th, 2014

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the effects of a formal settlement offer made on the eve of trial.

In last week’s case (J.D. v. Chandra) the Plaintiff was injured in two motor vehicle collisions.  At trial she was awarded just over $500,000 in damages.  On the last business day before trial the Plaintiff made a formal offer to settle for $200,000.  The Plaintiff sought double costs for the trial arguing the offer should have been accepted.  The Defendant argued the offer was made too late in the process to trigger such consequences.  In rejecting this position Madam Justice Griffin provided the following reasons:

[16]         One of the defendants’ arguments is that the offer was delivered too close to the start of trial.  The offer was delivered at the end of the day on Friday, January 31, 2014, and counsel for the defendants submits that he did not see it until the next day, Saturday, February 1, 2014.  The trial was set to and did commence the following Monday, February 3, 2014.

[17]         The shortness of time to consider the offer does give me pause.  However, counsel for the plaintiff has pointed out case authorities where ICBC has taken the position that offers it has delivered to plaintiffs on the eve of trial ought to be considered by the court in depriving the plaintiff of costs.  These arguments have been accepted in some cases, for example, see Bevacqua v. Yaworski, 2013 BCSC 29.

[18]         As noted by Mr. Justice Voith in Brewster v. Li, 2014 BCSC 463, there is currently no requirement in the Rules that an offer be made within a specific time from the start of trial.  The question of what is a reasonable time to consider an offer is “largely driven and governed by context” (para. 26).

[19]         Here, the context was that counsel for the defendants had delivered an offer to settle on January 21, 2014; the parties had attended a Judicial Settlement Conference on January 29, 2014, and the defendants had delivered an additional offer to settle on January 30, 2014.  This context suggests that the defendants were in a position where they were well able to analyze the risks of going to trial and the relative merits of each side’s position.

[20]         There was nothing complicated about the offers to settle which required lengthy analysis.  The parties were just exchanging dollar amounts.  There was no revealing new analysis of the issues or last minute disclosure of material information.

[21]         The plaintiff’s form of offer to settle adopted a form similar to that of the defendants.

[22]         The defendants were represented by experienced counsel for ICBC.  I find that the defendants were in a good position to be able to analyze and respond to the offer within hours, if not minutes.  I find that the defendants had sufficient time to assess the reasonableness of the plaintiff’s offer to settle.

 


Adverse Inference Drawn After Plaintiff “Chooses to Suppress” GP’s Evidence

July 10th, 2014

Adding to this site’s archived database of judgments addressing adverse inferences in personal injury lawsuits, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, drawing such an inference.

In today’s case (Rogalsky v. Harrett) the Plaintiff was involved in a relatively modest collision in 2010.  Fault was admitted.  The Plaintiff suffered a variety of injuries.  In support of her claim the Plaintiff tendered “a somewhat dated” report from an independent medical practitioner.  The Plaintiff did not produce evidence from her GP despite seeing him shortly before trial for the purposes of a medical-legal assessment.  In finding an adverse inference appropriate in these circumstances Mr. Justice Verhoeven provided the following reasons:

[44]         I am very troubled by her decision to not call evidence from her doctor. As noted, she confirmed that she saw him on February 26, 2014, for examination in relation to a medical legal report. His report is not in evidence, nor are his prior reports.  The plaintiff denied seeing the recent report or being aware of its contents. I do not accept that part of her evidence.  I cannot accept that the plaintiff had no input into the decision not to adduce the report.  At a minimum, she must be aware of the optimistic opinion Dr. Burns set out in an earlier report dated April 5, 2011, also not adduced in evidence, the contents of which are referred to in Ms. Hunt’s report, which the plaintiff acknowledged reading.  In her evidence the plaintiff downplayed the efficacy of the treatment provided by Dr. Burns and in effect his opinions by stating that her appointments with him are rushed and he does not seem appropriately focussed on her concerns.  In my view the plaintiff has simply chosen to suppress and downplay Dr. Burns’ evidence because it is not helpful to her case.  This adversely affects her credibility as a witness.

[45]         Moreover, in the circumstances of this case I consider it appropriate to draw an inference that Dr. Burns’ evidence would not have been favourable to her case.

[46]         Dr. Koo was not asked to provide an updated report based upon a further more recent examination of the plaintiff.  Thus his report is somewhat dated. In addition the weight I can give to the report depends upon the weight I can give to the evidence of the plaintiff herself, in respect of which I have some reservations, as indicated.

 


BC Court of Appeal Sends Strong Message To Cyclists Who Pass Vehicles on the Right

July 8th, 2014

Reasons for judgement were released today by the BC Court of Appeal addressing the practice of cyclists passing vehicles on the right finding, absent limited circumstances, that it is negligent to do so.

In today’s case (Ormiston v. ICBC) the Plaintiff was involved in a 2009 cycling collision. As he proceeded down hill a vehicle ahead of him in his lane of travel “was almost stopped at the centre line”. The Plaintiff had room on the right side of the vehicle and attempted to pass. As the Plaintiff did so the motorist veered to the right causing the Plaintiff to lose control.

The motorist left the scene and remained unidentified. The reason for the sudden veering motion remained unknown.  The Plaintiff sued ICBC pursuant to section 24 of the Insurance (Vehicle) Act. ICBC admitted that the collision occurred and involved an unidentified motorist, however, ICBC argued the Plaintiff was fully responsible.

At trial both the cyclist and motorist were found partly to blame.  The BC Court of Appeal overturned this result finding the cyclist was full to blame for passing a vehicle on the right.  In reaching conclusion the Court provided the following reasons:

[23]         Under the Motor Vehicle Act a cyclist is required to ride as near as practicable to the right side of the highway (s. 183(2)(c)).  “Highway” is broadly defined to include any right of way designed to be used by the public for the passage of vehicles (s. 1).  That, it is said, includes the shoulder such that sometimes cyclists must ride on it to be as near as practicable to the right side of the highway.  Vehicles are required to travel on the right-hand half of the roadway (s. 150(1)).  “Roadway” is defined as the improved portion of a highway designed for use by vehicular traffic but does not include any shoulder (s. 119).  Vehicles cannot travel on the shoulder.

[24]         The contention is that because cyclists must sometimes ride on the shoulder while vehicles cannot travel on that part of a highway, the shoulder must, where practicable, be a lane for cyclists within the meaning of s. 158(1)(b) such that, when riding on the shoulder, they are able to take advantage of the exception it provides and pass vehicles on a roadway on their right.  It does appear that what may be practicable could vary considerably having regard for the differing widths of the shoulder over any given stretch of a highway, or from one highway to the next, as well as the condition of the surface.  One cyclist may have a much different view than another as to what is practicable in any given instance.

[25]         While I doubt the legislative intention was to create by this somewhat convoluted statutory route what would be thousands of miles of unmarked and ill-defined bicycle lanes across the province, I do not consider s. 158 (1)(b) constitutes an applicable exception to the prohibition against passing on the right in any event.  As defined, the exception applies to a laned roadway being a roadway divided into marked lanes for vehicles travelling in the same direction.  The markings divide the roadway; the lanes marked are on the roadway.  A roadway does not include the shoulder.  The shoulder could not be an unobstructed lane on a laned roadway.  The “laned roadway” exception has, as the judge said, no application here.  It does not permit cyclists to pass vehicles on the right by riding on the shoulder.  It must follow the driver of the vehicle would have had no reason to expect a cyclist like Ormiston would attempt to pass on the right by riding on the shoulder.  That must be particularly so here when the shoulder was not fit for a bicycle because it was strewn with gravel and Ormiston was riding as far to the right of the highway as he considered practicable.

[26]         Ormiston did a foolish thing.  Rather than wait until the driver’s intentions were clear, he decided to do what the Motor Vehicle Act prohibits – pass on the right.  He decided to take a chance and he was injured.  Had he waited, even a few seconds, there would of course have been no accident because the vehicle drove on after it had moved to the right of its lane. 

[27]         I conclude Dixon Ormiston was the sole author of his misfortune.  I do not consider there to be any basis in law to hold the driver of the vehicle liable in negligence.


$25,000 Non-Pecuniary Assessment for Skin Burn Requiring Surgical Correction

July 7th, 2014

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a skin burn which required surgical intervention.

In today’s case (Nogueira v. O. Alasaly Pharmacy) the Plaintiff purchased a medicated patch from the Defendant pharmacy to treat muscle soreness in her thigh.  The patch was found to be defective and it caused a burn which required a surgical skin graft for correction.  The Defendant was found at fault for selling the defective product. In assessing non-pecuniary damages at $25,000 Madam Justice Funt provided the following reasons:

[16]         In the late evening of November 12, 2011, the plaintiff was in significant pain and went to the emergency room of her local hospital for further treatment.  She was treated with burn cream and further dressings were applied to the wound.

[17]         On December 13, 2011, Dr. Naysmith, a plastic surgeon with Royal Jubilee Hospital, operated on the burn area using a skin graft technique.  Dr. Naysmith excised the burn, harvested the skin to be grafted, grafted the skin, dressed the donor and burn sites, and stapled burn gauze into position.

[18]         The plaintiff testified that during the month before surgery she had the wound dressing changed every day.  During that period she was “very uncomfortable” when she drove or sat.

[19]         The plaintiff testified that the wound took “a good month” to heal from the surgery.  She says she still experiences tingling in the burn area.  The burn does not affect her mobility.

[20]         On December 4, 2014, Dr. D. Classen, a plastic surgeon, conducted an independent medical examination and prepared a report in contemplation of trial.  The plaintiff entered Dr. Classen’s report, dated March 6, 2014, into evidence.  In his report, Dr. Classen describes the plaintiff’s wound following surgery:

Examination of the left thigh demonstrates a residual scar on the left anterior mid-thigh, 17 centimeters above the knee.  The scar is 7 centimetres in vertical length by 4 centimeters in width.  It is mildly noticeable, as it is hypopigmented compared to the surrounding skin.  It has a slight meshed type appearance to the scar. The contour is depressed by approximately 1 millimeter compared to the surrounding skin.  I could palpate the area with complaint of some mild discomfort and a feeling of numbness described.  The skin graft scar is providing durable skin coverage.  There is no skin breakdown or ulcerations present.  The split thickness skin graft donor site scar is adjacent to this skin graft scar.  The donor site is barely noticeable, there is no contour abnormality.  There is no significant skin discoloration.  It is virtually similar to the surrounding skin appearance.

[21]         Dr. Classen did not testify.  He was not asked to provide an opinion as to whether the plaintiff’s skin was particularly sensitive or was in any way abnormal such that a medicated patch would burn her skin.  This possibility was not suggested in the cross-examination of the plaintiff.

[22]         The plaintiff describes the sight of her thigh now as “disgusting”, “ugly”, “a big splotch”, and feels it is “degrading”.  She does not wear many types of clothes she used to wear.

[23]         From the plaintiff’s presence in the witness box, it was readily apparent to the Court that the plaintiff believed her description of the affected area and was not trying to exaggerate or mislead the Court…

[39]         Section 56(2) of the Sale of Goods Act provides the measure of damages.  Section 56(2) reads:

The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.

[40]         It is foreseeable that in the ordinary course of events a defective medical analgesic patch (whether defective as a consequence of manufacturing, storage or some other cause) could injure the skin.  It is also foreseeable that a person may be proud of or may be self-conscious as to his or her physical appearance…

[43]         No two cases regarding physical injury will ever be identical.  With respect to a scar, the size, severity and location of the scar are some of the particular factors.  The injured party’s perception of the injury is also an important factor.  In determining the appropriate award, the Court has considered the plaintiff’s anxiety with respect to the scar.  The Court has also included as a factor the tingling she experiences at the site of the scar.  The Court awards $25,000 as non-pecuniary damages.


Statistical Census Data “Squarely Within the Admissible Class of Evidence”

July 4th, 2014

The BC Court of Appeal published reasons for judgement today confirming that it is entirely appropriate for an economist to rely on statistical census data in discussing average earnings.

In today’s case (Smith v. Fremlin) the Plaintiff was injured in a motor vehicle collision.   She was a recent law school graduate who just started her career.  The collision caused injuries which limited her capacity to work.  At trial the Court relied on an economists report which discussed average earnings for legal professionals in helping assess the Plaintiff’s diminished earning capacity.  The Defendant objected arguing the report relied on inadmissible hearsay, namely statistical census data.

The trial judge found the defendant’s objections to be ‘nonsensical’.  Despite this the Defendant appealed.   The BC Court of Appeal dismissed the appeal fining statistical evidence is entirely appropriate in these circumstances.  In reaching this conclusion the Court provided the following reasons:

[18]         The appellants say the Wickson report ought not to have been admitted into evidence at trial. They do not object to the qualification of Mr. Wickson as an expert but say his report is defective and inadmissible in two respects. First, it is said to be based upon evidence that is hearsay. Second, it is said to be irrelevant because it measures the income earning capacity of a group to which Ms. Smith does not belong.

[19]         The first of these objections, the hearsay objection, is unfounded. Mr. Wickson expressly describes the source of the data used in the preparation of his report. In addition to relying on published census data, he obtained a special tabulation providing education-specific 5-year age group income data from Statistics Canada. In my view, this data falls squarely within the admissible class of evidence described by Sopinka J. inR. v. Lavallee, [1990] 1 S.C.R. 852; it is information derived from enquiries that are an accepted means of arriving at an opinion within an economist’s expertise. The reliability of the data is supported by strong circumstantial guarantees of trustworthiness. It is, in words cited with approval in Lavallee, evidence of a “general nature which is widely used and acknowledged as reliable by experts in that field.”

[20]         Such was the opinion of this Court in Reilly. There, the Court noted that while hearsay evidence cannot generally be introduced through the admission of expert reports into evidence:

[114]       It is otherwise…with respect to the opinions of … economic experts based on the census data, which are routinely used by experts in their field …

[21]         In my view, the words of Smith J.A. in Jones v. Zimmer GMBH, 2013 BCCA 21, are a complete response to the appellant’s objection to the Wickson report and support and justification for the judge’s decision to admit it:

[50]      … Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband, [1967] S.C.R. 14 at 21, [1967] 2 C.C.C. 6; R. v. Lavallee, [1990] 1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.

[22]         The second objection, that the Wickson report is inadmissible, as “wholly or largely irrelevant to the Plaintiff’s circumstances,” is equally unfounded. The appellants say the weight of the evidence at trial supported the conclusion that Ms. Smith would likely work within a limited range of the occupations open to a qualified lawyer. They say it was not helpful to receive and not appropriate for the court to rely upon a report describing the earning potential of all female lawyers in British Columbia (rather than, for instance, female lawyers in British Columbia practicing environmental or Aboriginal law in a not-for-profit setting).

[23]         This objection should be considered in light of the generally accepted approach to assessment of claims for loss of income earning capacity, which is, first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff.

[24]         Average earnings were found to be the proper starting point for the assessment of damages under this head in Reilly, even though there was some evidence of the plaintiff’s specific professional interests. This Court observed:

[122]    The trial judge should have considered the possibility that the respondent might not have realized his professional goals or might have changed his goals.  Qualifying as a lawyer opens up a number of career possibilities.  It is reasonable to assume that the respondent would have remained in the profession.  But he might not have developed the professional skills to achieve above-average earnings.  He might have decided that he did not want to make the personal sacrifices often required to compete professionally at that level.  Other interests, of which he had many before his head injury, or future family commitments, might have persuaded him to alter his goals.  He might have chosen other disciplines within the profession with lower remuneration, such as prosecuting, working in the civil litigation departments of the federal or provincial government, or becoming in-house counsel in the private sector.  It is well known that in the legal profession interests change and there is great mobility.  In addition, there are many above-average lawyers with below-average incomes.

[123]    As well, the possibility that the respondent might have earned more money than predicted should be considered, although we consider that the chance of this happening was relatively low given the evidence of the small numbers of lawyers in Vancouver who have achieved outstanding financial success.  This award is intended to cover the respondent’s working life to age 70, a period of approximately 36 years from the date of trial.  Many things can change during such a long period of time and present-day assumptions are far from immutable.

[25]         Evidence of the earnings of the class of workers to which the plaintiff belongs is clearly relevant to the assessment of a loss of earning capacity. At some point, the evidence may be so general or vague as to be of little assistance but, in my view, that cannot be said of the statistical evidence used in this case. Evidence of the lifetime earning capacity of female lawyers in British Columbia, according to Mr. Wickson’s testimony in cross-examination, was the most specific data available. No further breakdown of incomes of female lawyers in this province by areas of practice is available. The Wickson report therefore was the best available evidence of what has been recognized as the starting point of the assessment of the loss of income earning capacity. It was properly admitted by the judge.

 


“Analytically Weak” Expert Report Criticized in Brain Injury Prosecution

July 3rd, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing an expert report characterizing it as ‘analytically weak’.

In the recent case (Anderson v. Kozniuk) the Plaintiff was involved in a pedestrian/vehicle collision.  Both parties were found partially at fault.  The Plaintiff suffered some orthopaedic injuries and also alleged the collision caused a traumatic brain injury.  The Court heard competing evidence regarding this and ultimately concluded that no brain injury occurred as a result of the crash.  In rejecting the Plaintiff’s evidence the Court provided the following critical comments about the expert evidence in support of the claim:

[128]     Dr. Ancill greatly diminished or completely ignored clinical records, such as the ambulance Crew Report and Royal Columbian Hospital clinical records. His explanation for doing so was the people filling those forms probably asked the wrong question of Mr. Anderson (“what happened?” instead of “what do you remember?”). Dr. Ancill does not know and did not enquire what questions were asked by the people who completed the clinical records. He simply assumed the wrong question was asked and ignored their observations. In my view, Dr. Ancill has exaggerated the importance of which question is asked, especially when interviewing a patient years after the Accident.

[129]     Dr. Ancill took all of Mr. Anderson’s and his mother’s description of Mr. Anderson’s changed behaviours at face value. Obviously, psychiatric assessment relies heavily on patient’s self-report. But it is expected that psychiatrists will exercise their skills and knowledge to assess the subject’s mood and behaviour in light of all circumstances, especially medically significant factors, in order to reach an accurate diagnosis. In my view, Dr. Ancill did not do that. I find that he summarily dismissed or greatly diminished the importance of objective evidence recorded close in time to the Accident and recorded by people trained to assess patients’ conditions for injury (the clinical records). This treatment of the clinical records is, in my view, highly problematic…

[131]     It is curious that Dr. Ancill suggested that even a “brief” loss of consciousness (in this case he assumed as little as 30 seconds) was medically significant. This was expressly contradicted by Drs. Siu, Prout and O’Shaughnessy who stated a “brief” period of loss of consciousness or disorientation that typically accompanies a mild traumatic brain injury would be about between 15 and 30 minutes. There is simply no evidence that Mr. Anderson was either unconscious or disorientated within the 30 minutes following the Accident, or at all.

[132]     Dr. Ancill also ignored or gave little relevance to factors that may very well have impacted his opinion, such as Mr. Anderson’s anxiety and his history of alcohol use.

[133]     Dr. Ancill provided a rebuttal report. Rather than respond to Dr. O’Shaughnessy’s criticisms of his methodology and conclusions, Dr. Ancill merely provides a clarification of his earlier report. In my view, the second report does not clarify the first report, and it is unhelpful. I place no weight on it…

[135]     Overall, I find Dr. Ancill’s evidence unreliable for all the reasons above. I also find his expert report analytically weak. Many conclusions are stated with little reasoning. His rebuttal report in particular is akin to an argument justifying his earlier conclusions rather than a response to Dr. O’Shaughnessy’s significant criticisms of his methodology and medical reliability. I place minimal weight on Dr. Ancill’s evidence.

 


 

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