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 Clarifies Limits of “Rescuer” Law

May 26th, 2015

The law recognizes that if a person’s negligence puts one in peril, a rescuer injured in the course of rescue can claim damages against the person who created the peril.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of rescuer law.

In today’s case (Ray v. Bates) the parties were involved in a motor vehicle collision in icy conditions.  The Plaintiff claimed the collision was caused by the Defendants negligence.  Following the collision the Plaintiff slipped and fell while walking with the intention of asking first responders to contact road maintenance authorities to get the icy road salted or sanded.

The Plaintiff argued the Defendant was responsible for the slip and fall as he was acting as a ‘rescuer’ at the time.  In upholding a trial dismissal of the claim the BC Court of Appeal provided the following reasons addressing the scope of the rescuer principle:

[14]        The rationale for special treatment of rescuers is that where a person’s negligence puts another person (or him/herself) in peril, it is entirely foreseeable that a bystander will react by attempting to eliminate the peril. The classic statement of the doctrine is that of Cardozo J. in Wagner v. International Railway Co. (1921), 232 N.Y. Rep. 176 at 180, 133 N.E. 437 at 437-8:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

[15]        In Videan v. British Transport Commission, [1963] 2 Q.B. 650, at p. 669, Lord Denning, M.R. said:

Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

[16]        These pronouncements were cited with approval by the Supreme Court of Canada in Horsley v. MacLaren, [1972] S.C.R. 441 at 444 and 467, and in Corothers v. Slobodian, [1975] 2 S.C.R. 633 at 638‑9 and 640‑41. They were also cited in Martin v. American International Assurance Life Co., 2003 SCC 16.

[17]        In Toy v. Argenti (1980), 17 B.C.L.R. 365 at 371-2, Esson J., as he then was, adopted statements describing the contours of the rescuer doctrine by Lord Jamieson of the Scottish Court of Sessions (Inner House) inSteel v. Glasgow Iron and Steel Company, [1944] S.C. 237 at 267:

[T]he following propositions … may be extracted …: (1) The intervention of human action does not necessarily per se break the chain of causation between the negligence and the injury sustained. (2) To entitle the sufferer to damages, such intervention must have been reasonable and such as might have been in the contemplation of the wrongdoer. (3) In determining what is reasonable in the circumstances the interests sought to be protected must be measured in comparison with the risks involved in the action taken. (4) If the action taken is reasonable, the injured person will not be debarred from recovering damages by his not having adopted the best possible course in the circumstances, or by his having made a mere error of judgment: but he will be debarred if his action is unreasonable and unwarrantable and outside the exigencies of the emergency: and (5) It is not essential that the action should have been taken on the impulse of the moment. The same result will follow if it arises from a natural response to avert danger after time for deliberation on the consequences of the risk taken.

To these I would add that, as the instinct to save human life is greater than the instinct to save property, a hazardous intervention for the former purpose is more likely to be a natural and probable consequence of a negligent act than one for the latter, and in the reasonable contemplation of the wrongdoer.

[18]        While Steel was not a common law case, I accept, as did Esson J., that the propositions referred to are also applicable in the common law.

[19]        There are a number of British Columbia cases in which plaintiffs have attempted to recover for slip and fall injuries that occurred while walking along roads in the aftermath of motor vehicle accidents. In Goodman v. Baxendall (1991), 8 B.C.A.C. 144, the plaintiff was involved in a motor vehicle accident on a hill. After the collision, in order to warn approaching traffic that there were stopped vehicles on the highway, she walked up the hill, but slipped and fell, resulting in personal injury. The trial judge denied recovery, holding the injury was not caused by the defendant’s negligence. This court allowed an appeal, saying at 146-7:

[T]he proper approach here is to ask whether it was reasonably foreseeable that following an accident such as this and in these circumstances someone ought to walk up the roadway, and would walk up the roadway, to warn oncoming traffic of the danger of the vehicles on the roadway over the crest of the hill and, that being so, was it reasonably foreseeable that in those conditions that person could slip, fall and sustain further injury? The trial judge found the plaintiff walking up the highway was a sensible thing to do. That being so, in my opinion it follows that what happened here was reasonably foreseeable as a consequence of the negligence of the driving of the defendants and they are, as a result, responsible in law for this slip and fall and the consequent damages.

[20]        On the other hand, in Schlink v. Blackburn (1993), 109 D.L.R. (4th) 331 (B.C.C.A.), the plaintiff’s wife was involved in a motor vehicle accident outside their home. The plaintiff ignored the accident until he learned that his wife was involved, at which time he rushed out of his house, tripping on the way out and injuring his ankle. The trial judge awarded damages, treating the case as a rescue case. This court disagreed, saying at 339:

This is not a “rescue case” any more than it is a “nervous shock” case. There is no evidence of danger, escape from entrapment, risk of death from delayed treatment or otherwise which would support such a classification. Accordingly, the “rescue case” authorities cited to us must be distinguished along with the authorities dealing with “nervous shock” cases.

[21]        Finally, I will refer to Bridge v. Jo (1998), 53 B.C.L.R. (3d) 338 (S.C.), in which a woman went to assist a person involved in a motor vehicle accident. After attending on the accident victim, she concluded that she should call an ambulance. While walking down the icy road toward her home to do so, she slipped and fell. Mr. Justice Boyle found that it was reasonably foreseeable that the defendant’s negligence would result in an injury to a rescuer, and found for the plaintiff.

[22]        In rescue cases, the law does not find the chain of causation to be broken by the rescuer’s actions because they are considered to be foreseeable consequences of the peril created by the negligence. In order for a plaintiff to bring him or herself within the principles applicable to rescue cases, therefore, the plaintiff must demonstrate that his or her actions were motivated by a reasonable perception of a peril that was caused by the defendant’s negligence.

[23]        In my opinion, the plaintiff fails to meet this requirement in two respects. First, the plaintiff could not reasonably have perceived a peril in the circumstances of this case. Everything was under control, and there was no reason to believe that road maintenance authorities had not been advised of the situation. This is what the judge meant when he said “Whatever else may be said of the plaintiff’s decisions, it cannot be said that he needed to walk to the ambulance to summon road maintenance personnel when all of the emergency personnel described were already in attendance.” He was not applying a standard of necessity in rescue cases, but rather was making a finding that there was no purpose to be served by the plaintiff walking on the road.

[24]        The plaintiff’s claim to be a “rescuer” in this case must also fail because any peril that the plaintiff was attempting to alleviate was one that was unconnected with the accident. This was not a case (like Bridge) where the plaintiff was attempting to assist a victim of the accident, nor was it a case (like Goodman) where he was attempting to reduce the danger posed to other drivers by the detritus left by the accident. The plaintiff was attempting to contact road maintenance officials to deal with the slipperiness of the road. That problem was purely a product of weather conditions, and not of the accident.

“Candid” Expert Witness Impresses BC Supreme Court

May 21st, 2015

I have spent much time on this blog highlighting expert witnesses who have been criticized by trial judges.  On this note it is refreshing to see when an expert witness is complimented by the Court for being candid in their role.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, doing this.

In today’s case (Gill v. Bhuller) the Plaintiff was involved in a 2010 collision caused by the Defendant.  She was ok at the scene and did not experience any symptoms until the following day.  She ultimately developed chronic soft tissue injuries.  The Court assessed non-pecuniary damages at $75000.

In the course of the litigation the Defendant had the Plaintiff examined by a physician that agreed she had ongoing symptoms from the collision which were expected to be chronic.  In complimenting the physician’s candid testimony Mr. Justice Macintosh provided the following reasons:

[25]         I was impressed by the testimony of Dr. Calvert called by the defence, because he was notably candid in his assessment of Ms. Gill, in keeping with the ethical responsibilities of an expert witness.  He accepted that she suffers ongoing pain.  He formed no impression that she malingers and he believed that she is genuine in searching for the cause of her problems.  He accepts that it is unlikely Ms. Gill’s symptoms will go away, and he can only speculate that she may see improvement.

$75,000 Non-Pecuniary Assessment For Trochanteric Bursitis and Plateaued STI’s.

May 19th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and bursitis.

In today’s case (Diep v. Cunha) the Plaintiff was a pedestrian struck by a vehicle in 2010.  The motorist was found fully at fault.  The Plaintiff suffered soft tissue injuries which were plateaued by the time of trial along with a chronic hip injury which te court attributed to bursitis.  In assessing non-pecuniary damages at $75,000 Mr. Justice Verhoeven provided the following reasons:

[54]         I accept that the plaintiff suffered what can be described as soft tissue type injuries to her low back, left hip and thigh, and left knee in the accident.  These injuries have shown slow but substantial improvement over the course of more than four years since the accident.  It is possible that the injuries have plateaued as suggested by Dr. Fuller and to a lesser degree by Dr. Hershler. However her G.P., Dr. Kam, only states that her aches and pains and limitations will persist for an extended time.  In my view it is clear that the plaintiff’s condition can continue to improve, especially if she engages in the kinds of treatments suggested by Dr. Horlick. 

[55]         With respect to her low back pain, I prefer the opinion of Dr. Horlick to that of Dr. Fuller.  Dr. Fuller diagnosed sacroiliac rotation and malalignment. In his view while manual therapy could assist with the alignment problem, it might do more harm than good.  On the basis of his diagnosis he thought that remedial exercise would not likely help.  However, as he conceded, Dr. Fuller was quite unsure of the plaintiff’s diagnosis.  I am not persuaded that he is correct that her low back problem is other than soft tissue in nature. On that basis, the exercise therapy recommendations of Dr. Horlick are preferable, and in my view are supported by the other opinions and the course of her treatment and recovery so far. That is, physiotherapy and rehabilitation have been of benefit in the past.

[56]         I also prefer Dr. Horlick’s diagnosis of trochanteric bursitis as being the main problem with her left hip. ..

[77]         These authorities are helpful in that they serve neatly to bracket the appropriate award in this case.  Considering all the circumstances in this case, in my view $75,000 is a fair and reasonable award of non-pecuniary damages. This award includes $10,000 for her loss of housekeeping capacity, which I find should be recognized as an aspect of her non-pecuniary loss in the circumstances of this case.

“It Makes Little Sense” To Require Continuous Particulars of Damages

May 15th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding that “it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed”.

In today’s case (Campbell v. Bouma) the Plaintiff was injured in a collision and sued for damages.  The claimed losses included past wage loss and special damages.  ICBC demanded that the Plaintiff provide particulars of “any claim of loss of earnings to date” and “of her out of pocket expenses”.

In dismissing these requests Master McDiarmid found that the Plaintiff was cooperative in the litigation and that it made little sense to require such claims to be particularized in the earlier stages of litigation.  The Court provided the following reasons:

[36]        The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.

[37]        It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.

[38]        Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.

[39]        Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date…

[44]        The particularization sought respecting specials resulted in plaintiff’s counsel providing a document listing specials; virtually all of those listed specials appear to have been disclosed by the plaintiff in her June 17, 2014 list of documents.

[45]        The particularization sought respecting “wage loss” was actually for “loss of earnings both past and prospective.” An order for past wage loss particularization can be appropriate; as quoted by Walker J. in Mansoorciting Cullen J., at para. 19:

…Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income … Those are matters of evidence and logical reasoning and inference not amendable to particulars.

[46]        Unlike the situation in Mansoor, the defendant in this case has some wage information that was available between the date of the accident, September of 2011, and March 14, 2012. The evidence before me is that plaintiff’s counsel has written to the employer and, no doubt will be providing updated information when received. There was nothing communicated to the plaintiff or her counsel of any particular urgency; they were working under the assumption that information and resulting disclosure were required to enable the defendant sufficient time to prepare for an examination for discovery scheduled for November 3, 2015.

[47]        Exercising my discretion after considering all of the circumstances in this case and applying proportionality, as I am required to do, the orders sought for particulars in paragraphs 1 and 2 of the notice of application are dismissed.

Private MRI Obtained for Diagnositic Puroses Producable in Injury Litigation

May 13th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to disclose the results of a private MRI to defendants.

In today’s case (Prothero v. Togeretz) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff’s physician wished for the Plaintiff to have an MRI and asked that this be obtained privately to expedite matters.  ICBC refused to pay for this service so the Plaintiff arranged to do so privately.  The Plaintiff did produce the MRI images arguing these were privileged.  The Court disagreed and ordered them to be produced.  In reaching this decision Master Caldwell provided the following reasons:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.


$55,000 Non-Pecuniary Assessment for Chronic Neck and Back Soft Tissue Injuries

May 11th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries.

In today’s case (Espinoza v. Espinoza) the Plaintiff was injured in a 2011 single vehicle collision.  He was a passenger in a vehicle that lost control and struck a lamp post.  The driver admitted fault.  The Plaintiff alleged the collision caused a traumatic thoracic outlet syndrome.  The Court did not accept this claim and found that the Plaintiff had “at times exaggerated his injury“.  Despite this the Court accepted the collision caused chronic soft tissue injuries and in assessing non-pecuniary damages at $55,000 Mr. Justice Grauer provided the following reasons:

[106]     Nevertheless, I am satisfied that Mr. Espinoza was indeed injured in the motor vehicle accident, and the defendant does not contest this.  I find that he sustained soft tissue injuries to the neck and back, and that these indeed have become chronic, though not as disabling as he would suggest.  In this regard, I rely most upon the evidence of Dr. Vinnitsky, whose examinations disclosed at least some objective symptoms and who had the opportunity to assess Mr. Espinoza over a period of time both before and after the accident.  I found the evidence of Dr. le Nobel and Dr. Salvian less helpful on this issue given their total reliance on Mr. Espinoza’s reports, and my concerns with the reliability of Mr. Espinoza as a historian.  As indicated, the evidence as a whole leads me to conclude that Mr. Espinoza has at times exaggerated his injury, attributing more to the motor vehicle accident than the evidence other than his own can support.  I do accept, however, the reality of the problem of chronic pain as a syndrome, a reality rejected by Dr. McPherson. 

[107]     I do not accept that Mr. Espinoza has suffered traumatic thoracic outlet syndrome as a result of the accident, as opined by Dr. Salvian.  The best evidence of his course after the accident, being the reports of Dr. Vinnitsky, is inconsistent with what Mr. Espinoza reported to Dr. Salvian, and does not support such a diagnosis.  Mr. Espinoza submits that Dr. Vinnitsky’s finding on March 8, 2012, of pain in the left wrist and “volar aspect of the left forearm” could properly be interpreted as due to numbness and tingling consistent with a developing post-traumatic thoracic outlet syndrome.  Dr. Salvian suggested as much.  I disagree.  It is clear that Dr. Vinnitsky related this to a sprained wrist.  I find that Mr. Espinoza has failed to demonstrate, on a balance of probabilities, that he suffered a thoracic outlet injury at all, or that, if he did, it relates to the accident…

[115]     I consider the Rutledge case to be much closer to this one, as it involved a chronic pain situation where a diagnosis of thoracic outlet syndrome was rejected.  Considering all of the necessary factors, and taking into account the evidentiary difficulties, I assess the plaintiff’s non-pecuniary damages at $55,000.

Plaintiff Ordered To Produce Past Settlement Details in Potential Indivisible Injury Claim

May 4th, 2015

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, ordering a Plaintiff to disclose details of previous settlements in a personal injury prosecution.

In last week’s case (Dholliwar v. Yu) the Plaintiff was injured in three collisions.  The Plaintiff settled his first two claims.  In the third claim the Defendants requested details of the previous settlements and the Plaintiff did not produce these arguing the details were privileged.  The Court found the claims had overlapping and possibly indivisible injury claims and thus the details needed to be produced.  In reaching this decision Master Scarth reasoned as follows:

[10]         The cases set out the following principles which are applicable to this application:

a.               The public interest in the settlement of disputes generally requires “without prejudice” documents or communications created for, or communicated in the course of, settlement negotiations to be privileged:Middelkamp v. Fraser Valley Real Estate Board (1992), 71 B.C.L.R. (2d) 276 (C.A.).

b.               A final settlement agreement is covered under the Middelkamp blanket protection for settlement communications: B.C. Children’s Hospital v. Air Products Canada Ltd., 2003 BCCA 177, confirming a general policy of non-production of all documentation relating to settlement negotiations.

c.               To establish an exception to settlement privilege, the applicant must show that a competing public interest outweighs the public interest in encouraging settlement. An exception should only be found where the documents sought are both relevant, and necessary in the circumstances of the case to achieve either the agreement of the parties to the settlement, or another compelling or overriding interest of justice. Relevance alone is not sufficient to override the settlement privilege. See Middelkamp; Dos Santos v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, para. 21.

d.               An exception to settlement privilege may be necessary to prevent injustice through excessive compensation to the plaintiff: Dos Santos, para. 29, citing Pete…

[26]         It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298, but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial. 

[27]         In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach.

[28]         To the extent that disclosure at this time raises concerns with respect to the fettering of the trial judge’s determination of damages, the parties may wish to agree that, as in Gnitrow Ltd, v. Cape plc, [2000] 3 All E.R. 763, the terms of the settlements not be disclosed to the trial judge until a determination of the damages payable by the defendant has been made: at para. 21.

[29]         In the circumstances, I conclude that it is appropriate to make an order for production of the documents which set out the terms of the settlements of the plaintiff’s claims arising from the two previous accidents.

[30]         The defendants are entitled to their costs in the cause.

Court Critiques Defence Doctor’s Opinion Following “Flawed” Investigation

April 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with critical comments regarding a medico-legal opinion.

In today’s case (Chenier v. Szili) the Plaintiff was involved in a 2010 rear end collision caused by the Defendant.  The collision resulted in significant injuries.  In the course of the lawsuit the Defendant had the Plaintiff examined by a physician who provided evidence minimizing the connection between some of the plaintiff’s symptoms and the collision.  In rejecting this evidence where it differed from the Plaintiff’s neurosurgeon Mr. Justice Armstrong provided the following comments:

[154]     Dr. O’Farrell is a retired orthopaedic surgeon. He has not done any spinal surgery for 10 years. He stopped doing spinal surgery to allow room for younger, more skilled people to provide that service. His last scientific paper was published in 1996 and his last involvement in research was in 2003. He continues to see patients with back pain.

[155]     Dr. O’Farrell paid no regard to the plaintiff’s upper back injury and resulting symptoms. He recorded no complaints from the plaintiff regarding his upper back sensations of numbness and tingling in his right and left arms. He recalled that the plaintiff’s left arm improved but there were residual symptoms in his right arm.

[156]     Dr. O’Farrell did not recall performing an upper extremity examination of the plaintiff. He said it was possible he had not examined the plaintiff in that region.

[157]     He was asked about Dr. Lee, Dr. Watt and Dr. Sahjpaul identifying brisk reflexes in their examinations of the plaintiff. He was provided the notes from Dr. Lee, Dr. Watt and Dr. Sahjpaul. Dr. O’Farrell agreed that increased tone is evidence of spinal cord compression but said he did not find any indication of that condition in his examination. It was clear that if one accepted Dr. Sahjpaul’s findings, this would have been confirmatory evidence of a spinal cord compression.

[158]     There were other anomalies in Dr. O’Farrell’s examination and reporting of his findings concerning the plaintiff. These include:

(a)      He considered Mr. Chenier’s symptoms as mild because he thought Mr. Chenier was continuing to do his pre-accident heavy work with minor complaints. On this point he is simply wrong;

(b)      His written record reported Mr. Chenier complaining of pain when lifting or bending, but Dr. Farrell used the phrase discomfort in his report. Dr. O’Farrell did not adequately explain why he transposed pain into discomfort in his report;

(c)      He neglected to record that the plaintiff was involved in a double impact accident which would have indicated a more significant collision;

(d)      He reviewed notes indicating that the plaintiff went to a walk-in clinic on the day of the car accident and was observed to have right and left neck spasm and lumbar spasm, but these facts were omitted in his report. This was significant because evidence of right and left neck spasm and lumbar spasm was significant in respect to his diagnosis. They confirm the immediate post-accident onset of pain;

(e)      The doctor reported the plaintiff had previous chiropractic treatments but he did not ascertain the number of those treatments or the purpose of those treatments. The symptoms giving rise to those treatments and the number of treatments would have been relevant. He described his omission of any reference to this treatment as a possible “oversight”. Dr. O’Farrell conceded that the earlier chiropractic treatments could have been related to a pulled muscle rather than a symptomatic disc disease and he did not recall why he had not noted the frequency or reasons for the treatments;

(f)       He did not make any note of the plaintiff’s complaints of arm numbness and tingling in his fingers but insisted he would have inquired about them. The doctor said “it was not a major issue” for the plaintiff and he did not investigate this region further;

(g)      He observed that the plaintiff had a positive response indicating spinal pathology in the lower back. He said he did not find any evidence of increased tone then he would agree there was evidence of spinal cord compression;

(h)      He said he would have done a neurological exam of the plaintiff but it was not documented. He later said he may not have done an upper extremity neurological exam due to an oversight. It is likely he did not do such an examination;

(i)       He said the results of the lower extremity neurological exam were normal. Though Dr. Watt had earlier found deep tendon brisk reflexes, he believes these reflexes might not be abnormal.

[159]     Dr. O’Farrell conceded that Dr. Sahjpaul’s diagnosis of the C5/6 and C6/7 degeneration was persuasive and that he would defer to Dr. Sahjpaul in regard to that opinion.

[160]     I have concluded that Dr. O’Farrell’s investigation of the plaintiff, his clinical notes taken during his examination of the plaintiff and the differences between his notes and underlying facts in the report were flawed. Most significantly, he did not do an upper body examination of Mr. Chenier and did not observe other symptoms that confirmed a spinal cord compression.

[161]     Dr. O’Farrell’s recent professional activity, in contrast with Dr. Sahjpaul’s practice, persuades me that the opinion of the latter is to be given more weight. Dr. Sahjpaul, as a neurologist, has more current expertise that is focused on the type of spinal injuries suffered by the plaintiff.

[162]     Dr. O’Farrell also confirmed that he would defer to Dr. Sahjpaul’s opinions concerning the plaintiff’s upper spine injury.

[163]     Thus, I conclude that Dr. O’Farrell’s opinions regarding the plaintiff’s low back injury and his upper spine injuries and their connection to his pre-existing degenerative disc condition are not persuasive. Where his opinion conflicts with that of Dr. Sahjpaul, I prefer Dr. Sahjpaul’s opinion.

Nurse Found Liable for “Negligent Walking”

April 28th, 2015

There is no reason why the principles of negligence can’t apply to a situation where one pedestrian negligently walks into another causing injury.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.

In today’s case (Faircrest v. Buchanan) the “unintentionally bumped into (the plaintiff) while leaving her office to attend to a patient”.  The Plaintiff fell down and suffered a fractured hip.

The Defendant argued that no liability should flow stating that “a person of ordinary fortitude would not have fallen as a result of the Collision“.  The Court disagreed and found liability could flow from negligent walking.  In doing so Mr. Justice Erhcke provided the following reasons:

[57]         The parties are in agreement that there are four elements to be proved by the plaintiff in an action for negligence, as set out in para. 3 of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:

[3]        A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. I shall examine each of these elements of negligence in turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to establish that his damage was caused in law by the defendant’s negligence. In other words, his damage are too remote to allow recovery.

[58]         The first and the third elements are not in issue, since Fraser Health acknowledges that Nurse Buchanan owed the plaintiff a duty of care and that the plaintiff was injured in the Collision. Fraser Health also acknowledges that it is vicariously liable if Nurse Buchanan is found to have been negligent.

[59]         As to the fourth element, Fraser Health contends that even if the plaintiff’s injuries were in fact caused by the Collision, they were too remote to warrant damages, and therefore, legal causation has not been established. Fraser Health submits that a person of ordinary fortitude would not have fallen as a result of the Collision, or if she did, she would not have sustained injury.

[60]         I do not agree. There is no evidence that Ms. Faircrest’s arthritis, age, or stature had anything to do with her sustaining injuries in the Collision. Although she may have walked more slowly than others, that was not a relevant factor in the outcome. It was reasonably foreseeable that if Nurse Buchanan, who weighed 185 lbs., while not watching where she was walking, collided with a female volunteer, that volunteer might fall and suffer physical injuries. The injuries are not too remote to warrant damages, if the standard of care was breached.

[61]         We come then to the third element, breach of the standard of care. The standard of care in the case of collisions between pedestrians was described in this way by Dhillon J. in Mills v. Moberg (1996), 27 B.C.L.R. (3d) 277 (S.C.) at para. 6:

The duty of pedestrians to one another is to act as an ordinary person would in the circumstances, using the degree of care and vigilance which the circumstances and the interests of others using the walkway demand.

[62]         In that case, Dhillon J. found a delivery driver liable in negligence for having knocked over another pedestrian as he walked around the corner of his truck in a mall parking lot, causing the 76-year-old plaintiff to fall and break her hip. She wrote at para. 6:

In this case, the defendant, Moberg, failed to consider the possibility of other pedestrians in the parking lot despite the configuration of the lot which necessitated pedestrians to cross the lot to reach the shops. Given the proximity of the mall to long term care and rehabilitation facilities and given Moberg’s regular presence at the mall, Moberg should have been alert to the presence of pedestrians including disabled persons in the vicinity. He did not look to his right as he quickly rounded the rear of his delivery van to reach the driver’s door. His failure to look for other pedestrians was the cause of the collision.

[63]         In the present case, it is, of course, relevant that Connolly Lodge is a residential mental health facility and that Nurse Buchanan had a duty to react quickly to the disturbance caused by one of the patients. Nevertheless, her quick reaction was no reason to be heedless of other persons standing or walking in the Lodge who might be in her path as she proceeded to attend to the patient. Her failure to notice the presence of the plaintiff in her path caused the Collision.

[64]         I therefore find that Nurse Buchanan was negligent, and that Fraser Health is vicariously liable for her negligence.

“Walk Away” Offer Results in Double Costs After Plaintiff Claim Dismissed

April 27th, 2015

Reasons for judgement were released today ordering a Plaintiff to pay costs and post offer double costs after having his personal injury claim dismissed at trial.

In today’s case (Johnson v. Jamiesen) the Plaintiff was involved in a 2010 collision.  Fault was disputed.  In the course of the litigation the Defendant made an offer to settle the claim for $0 with both parties bearing their own costs to date.  The Plaintiff proceeded to trial and the claim was dismissed.  In finding that the ‘walk away’ offer ought to have been accepted and awarding double costs Mr. Justice Brown provided the following reasons:

[14]         The plaintiff had in hand the defendant driver’s witness statement when he received the offer to settle. Six months later, the parties conducted examinations for discovery. The only witness called by the plaintiff was his girlfriend. He should have been aware of the reliability and shortcomings in her evidence by then. Further, following examinations for discovery, the plaintiff was positioned to see the perils of his position on liability.

[15]         The defendants characterize their offer as a “walk-a-way” offer. While a nuisance offer may bear no real relationship to a plaintiff’s claim and not constitute an offer reasonably capable of acceptance, the court has recognized a walk-a-away offer may bear a realistic relationship to the plaintiff’s claim, reasonably capable of acceptance and, if rejected, justify an award of double costs, Riley, v. Riley, 2010 BCSC 822. In Riley, the court found the plaintiff possessed all the information the defendant intended to rely on at trial, which in this case, would be the evidence of the defendant driver. There were some potential accident witnesses at the scene potentially available to the plaintiff, but he could not call them because he and his girlfriend chose not to obtain any contact information from them, electing to go to a pub for a beer and to watch the hockey game.

[16]         The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.

[17]         See, besides Riley: Henry v. Bennett, 2014 BCSC 1963 at paras. 29 and 30; Houston v. O’Connor, 2011 BCSC 509 at para. 59; Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 [“Catalyst”]; Brooks v. Gilchrist, 2011 BCSC 56 at para. 16; and Bay v. Pasieka, 2014 BCSC 809 at para. 20.

[18]         In Catalyst, Hall J. A. made this useful comment at para. 16:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

[19]         I am not aware of any particular financial considerations. The plaintiff has not made submissions on costs.

[20]         Accordingly, the defendants have an order for all costs of the proceedings at Scale B, up to and including May 15, 2012. For all the steps they took in the proceeding after the October 9, 2012 examinations for discovery, they are entitled to double costs.


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