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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 23rd, 2014
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.
In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006. His motorcycle struck the pup trailer of a dump truck. This resulted in profound injuries which required an above knee amputation for the Plaintiff.
The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision. In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events. In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:
 Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…
 Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.
 In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.
 Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.
 The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events.
 The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.
 Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.
 For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.
April 22nd, 2014
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, allowing a Plaintiff to recover interest charged on a loan which financed disbursements.
In today’s case (Phippen v. Hampton) the Plaintiff sued for damages following a personal injury. In the course of the claim the Plaintiff borrowed funds from a company associated with the lawfirm she hired to advance her personal injury claim. This loan was for disbursement funding and the lender charged interest at 15%. The Court was satisfied that the loan was needed but reduced the recoverable interest to 6%. In reaching this conclusion District Registrar Cameron provided the following reasons:
 I am satisfied based upon the Affidavit evidence provided by Ms. Phippen, that she has established that her financial situation was such that it was necessary and proper for her to seek out financing for the disbursements that needed to be incurred to pursue her claim…
 Mr. Mullally goes on to say — and I do not find this to be controversial — that it is difficult for most clients who have suffered a personal injury to finance the necessary disbursements that must be incurred to advance their case.
 In passing, of course, this highlights the need for contingency fee agreements that allow for access to justice and alongside that disbursement loan arrangements, if they can be accommodated by the law firm or arranged by the law firm also help with that same purpose in mind…
 Turning to the circumstances of this case, Ms. Phippen was charged an interest rate of 15 percent by PIL.
 In Chandi, supra, Mr. Justice Savage said that the Registrar must consider the entire context of the arrangement. In this case — and I refer back to Mr. Mullally’s evidence — while the law firm did not itself lend the funds necessary for the disbursements to the Plaintiff, a company that the law firm or members of the law firm had a controlling interest in provided that assistance.
 Looking at the matter contextually I find that the law firm was not arm’s length from the lender, PIL. This was properly conceded by Plaintiff’s counsel. In this case, the law firm arranged the necessary loan for the Plaintiff that provided for a profitable rate of interest to the lender. In the current economic climate, I am not satisfied that an interest rate of 15 percent is reasonable to pass along to the Defendant, and as Master McDiarmid and Master Young have done in the decisions I have referred to, I will award a rate of six percent.
April 22nd, 2014
Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing the appropriateness of assumed future fact scenarios in an economists report. In short the Court held that such assumptions could be laid out in the body of a report.
In the recent case (Hill v. Murray) Mr. Justice Macaulay provided the following comments on this topic:
 In Sacilloto v. Crossman (1990), 49 B.C.L.R. (2d) 375 (S.C.), the defence objected to an economist’s report that set out various possible scenarios for the expected earnings of the plaintiff, based on the assumption that he had not been injured in the accident, along with further scenarios for possible earnings after the accident.
 The court pointed out that many of the assumptions underpinning the report were at issue in the trial and, as a result, it would be impossible for counsel or the economist to rely on one assumption as to facts. The court considered the use of several scenarios to be in harmony with the fact that there were a number of live issues at trial. On admitting the report, the court stated:
(12) I am left with the impression that the author of the report has endeavoured … to tie the statistical data to the various possible scenarios that I may find or may not find applicable to the plaintiff. In doing so, he has endeavoured to mould the report to the likely evidence scenarios before the Court. That opinion evidence to me is useful evidence. It provides me with materials which, from my general experience both before and after coming to the Bench, I would not otherwise have.
(13) The case here is not a simple looking ahead for someone who has worked for many years and has established his working pattern in life. …
(14) Here, I am dealing with a young man who is embarking upon a working career, who on the evidence … was in a state of flux as to what he would do in the future … The type of evidence that has been put before me is such that I could not from my own experience pluck it out of my mind and arrive at reasonable estimates as to what might lie ahead depending on the findings of fact that I make.
Although this case suggests that admissibility may depend on the complexity of the calculations involved and the uncertainty of the future options for the plaintiff, the use of the scenarios does not in itself render the material inadmissible.
 Finally, the Court of Appeal implicitly improved the admission and use of such expert opinion material in Jurczak v. Mauro, 2013 BCCA 507. In that case, the economist provided an expert opinion on loss of earning capacity based on two sets of assumptions arising out of the plaintiff’s pre-accident work history and proffered scenarios in each case.
 Although the Court of Appeal overruled the trial judge’s approach to determining future loss of earning capacity, the court commented, “if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them.” A failure to do so may result in a wholly erroneous estimate of the damages (both at paragraph 37).
 In this regard, I am satisfied that the sections of the reports and tables to which the defendant objects in the present case are admissible.
To my knowledge these reasons for judgement have not yet been publicly published but, as always, I am happy to share a copy with anyone who contacts me and requests them.
April 17th, 2014
In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.
In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision. The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries. In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:
 This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…
 Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.
 During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.
 Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….
 In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.
 In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.
April 16th, 2014
Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“. The Defendant motorist was driving eastbound. It was “snowing heavily and visibility was poor“. The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react. The claim was dismissed. In upholding this result the BC Court of Appeal provided the following reasons:
30] Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..
32] The evidence was unsatisfactory. The trial judge was alive to the “paucity of the evidence and its obvious frailties” (para. 95) and the difficulty faced by Ms. Armstrong and Ms. Scott in the circumstances as they bore the burden of proof.
 At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.
 I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.
April 15th, 2014
In the latest addition to this site’s Thoracic Outlet Syndrome caselaw database, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for mild but chronic TOS.
In this week’s case (Minenko v. Minenko) the Plaintiff was injured in a 2009 intersection collision. The at fault driver admitted responsibility. The Plaintiff developed a mild but persistent Thoracic Outlet Syndrome which remained symptomatic at the time of trial. In assessing non-pecuniary damages at $80,000 Mr. Justice Truscott provided the following reasons:
 Dr. Shuckett saw the plaintiff on August 2, 2013 and says that the plaintiff has probably achieved maximum medical recovery and will be left with her current symptoms.
 She says the plaintiff is not disabled from work although it may be more difficult for her and she should do regular walking and some regular aerobic exercises that do not over-use her upper body and arms.
 Dr. Shuckett also suggests flexeril pills to decrease muscle spasm and assist the plaintiff in sleep, along with local trigger point injections and/or Botox injections into the area of muscle spasms in the right neck and shoulder girdle region could be considered.
 Injection therapy, if it works, in her opinion has to be repeated every six months or so which applies to any Botox injections as well…
 At trial, she says she believes she is qualified to diagnose thoracic outlet syndrome but defers to Dr. Salvian for the ultimate opinion on this as he is the primary expert on it.
 At trial, she strengthens her opinion somewhat by saying she believes the plaintiff has mild thoracic outlet syndrome.
 The plaintiff says she also initially suffered from anxiety attacks in the night, but only occasionally does so now. Currently, she says she has headaches and constant dull pain in her right arm, as well as the right shoulder and right upper back area. Any physical activities cause her pain in her right arm and this increases over a busy day.
 She takes Advil during working hours but continues working…
 There is no evidence her injuries can be alleviated through surgery but some of the pain may be ameliorated through the use of Botox…
 I have reviewed all of the cases cited to me by both counsel on the issue of non-pecuniary damages and in my view, the sum of $80,000 is an appropriate amount to award the plaintiff for her pain and suffering and loss of enjoyment of life and as well for her loss of housekeeping ability.
April 14th, 2014
Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.
In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision. Fault was admitted. The Plaintiff alleged a host of consequences from the crash. Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.
In the course of the trial the Court heard from a variety of physicians. Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason. In rejecting his evidence Mr. Justice Romilly provided the following brief comments:
 Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.
April 11th, 2014
As previously discussed, when a formal settlement offer dealing with costs consequences is accepted the BC Supreme Court had no discretion to make a different order with respect to costs. Reasons for judgement were released this week confirming this principle.
In this week’s case (Tomas v. Mackie) the Defendant made a formal settlement offer $77,400. The offer included the usual term that, if accepted, the Plaintiff would be entitled to reasonable costs and disbursements up to the date of the offer and the Defendant would be entitled to their costs and disbursements from that time onward.
The Plaintiff accepted the offer 13 days after it was derived. During this period further costs were incurred. The Plaintiff argued that the Defendant should be responsible for these as the Plaintiff should have the benefit of a reasonable period of time to consider the offer. District Registrar Cameron was sympathetic to this argument but ultimately disagreed noting there is no judicial discretion to deviate from the terms of the accepted formal offer. In reaching this conclusion the Court provided the following reasons:
 Mr. Loewen submitted that the acceptance of the settlement offer constituted a binding agreement and as a result the court has no discretion to vary the terms of that agreement under Rule 9-1 or 14-1 of theSupreme Court Civil Rules.
 Mr. Loewen referred to a number of authorities in support of his argument that clearly were not before Registrar Sainty…
 Applying these authorities, it is clear that I do not have the discretion to vary the terms of the settlement agreement made by the parties and they should obtain a date from the Registry for the assessment of both the Plaintiff’s and the Defendants’ costs pursuant to Rule 14-1 of the Supreme Court Civil Rules.
April 10th, 2014
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding that an “all inclusive” formal settlement offer is capable of triggering costs consequences.
In today’s case (Wettlaufer v. Air Transat A.T. Inc.) the Plaintiff sued for damages after an “aircraft touched down and then braked, an unsecured food cart struck, with force,(struck) the back of the plaintiff’s seat.”. Prior to trial the Defendant made an offer, inclusive of costs and disbursements, of $250,000. The Plaintiff rejected this offer, proceeded to trial and sought damages of over $1 million. Much of the Plaintiff’s claimed damages were rejected with an award of approximately $110,000.
The Plaintiff argued the all inclusive offer should not trigger costs consequences. Mr. Justice Funt disagreed finding there is no prohibition to formal offers which have costs and disbursements built into them. In reaching this decision the Court provided the following reasons:
 The present Rules of Court provide greater discretion to the Court and avoid the formulaic approach reflected in the older rules set forth above. Justice Masuhara in Dodge v. Shaw Cablesystems, 2009 BCSC 1765, described the rationale for the rejection of all-inclusive offers under Rule 37 (the old rule in Helm):
 The old Rules provided a complete code which determined the costs consequences of an offer to settle: Cridge v. Harper Grey Easton, 2005 BCCA 33 at para. 20, 37 B.C.L.R. (4th) 62. Under the old Rule 37(24)(a), if the defendant made a monetary offer to settle which the plaintiff did not accept, and the plaintiff obtained a judgment equal to or less than the settlement amount, the defendant was entitled to costs from the date the offer was delivered. With such rigid cost consequences from which the judge had no discretion to depart, the rationale for the rule against “all-in” offers in Helm was engaged. Where the judge was unable to discern what part of the settlement offer was for costs and what part was for discharge of the action, the judge could not precisely evaluate whether or not the plaintiff obtained judgment more favourable than the settlement offer, leading to potentially drastic consequences.
 In his October 18, 2012 letter, defendant’s counsel, Mr. Dery, rejected the plaintiff’s offer to settle for $996,025 plus taxable costs and countered with the $100,000 all-inclusive offer. The plaintiff did not provide a bill of costs and disbursements.
 Absent a bill of costs, the defendant’s further all-inclusive offer of $250,000 is understandable. Most litigants seeking to resolve a dispute prefer finality.
 With Helm decided on the significantly different rules, the Court is not bound by the rule in Helm that all-inclusive offers cannot be considered. The Court’s consideration of the $250,000 all-inclusive offer accords with the text, context and purpose of the current Rule 9‑1.
April 7th, 2014
Reasons for judgement were released this week by the BC Supreme Court, Prince George Registry, outright rejecting a personal injury claim as a result of credibility concerns.
In today’s case (Fancy v. Gareau) the Plaintiff was involved in a 2008 rear end collision. Fault was admitted. At the time of the collision the Plaintiff was on a WCB claim. She claimed the collision caused a neck injury and that this was not a pre-existing problem. In the course of the trial this claim proved unreliable and the Court ultimately dismissed the claim. In reaching this result Mr. Justice Parrett noted as follows:
 Perhaps the most startling reversal in her evidence was the cross-examination of the plaintiff about a portion of Exhibit 8.
 This document was a spreadsheet prepared by the plaintiff and her husband as a part of their submission to the Workers Compensation Board to help establish that she had suffered “an upper back injury”. In item 11 on page 2 of the spreadsheet the plaintiff specifically refers to the August 5, 2008 Physiotherapy Initial Notification (Exhibit 10) referred to above. The excerpt contained in item 11 specifically notes that the “Injury Recorded on Claim: Neck” and then records the following submission regarding the document:
Corroborating Documentation of stiff neck from workplace injury (July 8, 2008) – this injury is NOT from the MVA as suggested by CD in Item 32.
 The last column of this spreadsheet is entitled “Proof of:” and is divided into two columns, the first of which is “Upper back/left arm injury”.
 The plaintiff entered “Yes” in this column with respect to Item 11.
 When confronted with this document the plaintiff conceded that when the Workers Compensation Board case manager said that the neck injury was not as a result of the workplace injury but from the motor vehicle accident she disagreed and said ‘no, I injured my neck in the workplace accident’.
 When pressed on this point she advised the court that:
The upper back, to me, includes the neck.
 This evidence was given without the faintest embarrassment or apparent realization that the previous day she had testified that:
When I say upper back I do not mean my neck.
 This is a personal injury action in which the issue is causation. Simply put the question amounts to this – Was the plaintiff injured or did she have existing injuries or conditions aggravated by the motor vehicle collision on September 30, 2008?
 The evidence presented to the court by the plaintiff is devoid of medical evidence and opinion touching on the issue of causation.
 The only expert opinion placed before the court is that of Dr. McKenzie who first saw the plaintiff some 28 months after the motor vehicle collision. In providing Dr. McKenzie with the history he used as the foundation of his opinion the plaintiff misrepresented and altered the facts and withheld critical information about her physiotherapy treatments and pre-existing symptomology.
 The effect of her actions destroyed any value of Dr. McKenzie’s opinion…
 The plaintiff’s action is dismissed.