ICBC Law

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.

Archive for June, 2010

Non-Pecuniary Damage Awards Discussed for Chronic Pain with Pre-Existing Depression

June 29th, 2010

Pre-existing medical difficulties can and do play a role in the process of awarding a Plaintiff damages for pain and suffering and loss of enjoyment of life (non-pecuniary damages).  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this area of law.

In today’s case (Beaudry v. Kishigweb) the Plaintiff’s vehicle was rear-ended by a 1/2 ton pick-up truck.  Fault was admitted for the crash.   The Plaintiff sustained a variety of soft tissue injuries affecting her neck, upper back and lower back.  These went on to cause chronic pain and headaches and the Plaintiff never fully recovered from the consequences of her injuries.

Prior to the accident the Plaintiff suffered from some medical difficulties and these included a chronic low grade depression.  Her pre-accident health made her more vulnerable to having a poor outcome following the accident.  The Defendant, who basically conceded that the Plaintiff did suffer from chronic pain as a result of the collision, argued that “whether or not the Plaintiff was a vulnerable individual (as a result of pre-existing conditions), she cannot be put back to a better position than she would have been had the accident not occurred“.

The Court went on to find that the accident did cause chronic pain which was not resolved at the time of trial.  The Court further found that the chronic pain would continue into the future, however, it would not prevent the Plaintiff from working full time or from carrying out her household responsibilities.  In awarding the Plaintiff $85,000 for her non-pecuniary damages Mr. Justice Rice made the following comments about damages for non-pecuniary loss for chronic pain with pre-existing difficulties:

[25]         The difficulty of assessing damages for soft-tissue injuries where the plaintiff has a complicated psychological and behavioural background is described in Rod v. Greco, 2003 BCSC 935, at para. 35:

As to physical injuries, because of the mechanics of the motor vehicle accident [the plaintiff’s vehicle was rear-ended] some must have been sustained by the plaintiff.  However, the complex psychological and behavioural history both pre and post accident outlined above made it difficult to identify them with any precision.

[34]         With the virtual admission by the defendants that the plaintiff now suffers from chronic pain, I must first of all decide what the condition of the plaintiff was just before the accident.  Clearly she was not in the best of shape and that must be taken into account.  She was susceptible to pain and worse, depression, some of which could be said was the result of lifestyle mistakes made in the past.  Having recovered from most of those, I agree that it is not fair to reduce what she would otherwise receive simply on the basis of a greater susceptibility because of her past.  On the other hand, to the extent that those past experiences would have revisited her earlier in life than is normal, account must be taken of that too.

[35]         Considering the whole of the evidence, I find that, indeed, the plaintiff suffers chronic pain as a result of the collision.  I award her $85,000 in non-pecuniary damages.


You Can't Sue Twice; The Doctrine of Res Judicata

June 28th, 2010

Res Judicata is a legal principle which prevents a claimant from having their legal issues decided twice.  Once you’ve had your day in Court on an issue you are stuck with the result (subject to an appeal).  You can’t sue again and have a second trial hoping for a different result.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of this principle.

In today’s case (Innes v. Bui) the parties were involved in a a two vehicle intersection collision in 2001.  They approached each other from opposite directions.  The Plaintiff (Innes) attempted to go through the intersection and the Defendant (Bui) commenced a left turn.  The vehicles then collided.

ICBC, as is often the case in British Columbia, was the insurer for both parties.  ICBC decided that the Ms. Bui was entirely at fault.  This raised her insurance premiums.  Ms. Bui sued ICBC in small claims court arguing that she was not at fault and should have her increased premiums returned.  Eventually Ms. Innes was substituted for ICBC.   Ms. Innes was defended by an ICBC appointed lawyer.  ICBC argued that Ms. Bui was at fault.

At trial the Judge found that both Ms. Innes and Ms. Bui were ‘honest people” and he could not choose between their testimony.  The Small Claims judge dismissed the lawsuit finding that “In essence, I cannot choose between them, and to use a probably inappropriate sports metaphor, tie goes to the defendant in a case like this.  In other words, because I cannot decide who it is that I believe, I  have to dismiss the claim, and that is what I am doing.”

At the same time Ms. Innes filed a separate lawsuit against Ms. Bui in the BC Supreme Court alleging that Ms. Bui was at fault.  The Plaintiff was asking for compensation for her personal injury claims.  ICBC appointed a lawyer to Defend Ms. Bui and in this lawsuit argued that Ms. Innes was at fault.     ICBC brought a motion asking the lawsuit to be dismissed based on the principle of “res judicata“.  They argued that since the Small Claims judge already heard the issue of fault and called it a ‘tie‘ Ms. Innes’ case needs to be dismissed in the same way that Ms. Bui’s case was.

A chambers’ judge agreed and dismissed the lawsuit.  The Plaintiff appealed.  The BC High Court overturned the dismissal and found that the Chamber’s judge misapplied the law of ‘res judicata’.  The BC Court of Appeal provided the following useful analysis setting out the limits of the res judicata principle:

19]         There are two forms of the doctrine of res judicata: cause of action estoppel and issue estoppel.  Both operate where the court has adjudicated a cause of action between two or more parties and one of them seeks to re-litigate on the same facts.  Where the cause of action is the same, cause of action estoppel operates to prevent re-litigation of any matter that was raised or should have been raised in the prior proceeding.  Where the cause of action in the two proceedings is different, issue estoppel operates to prevent re-litigation of any issue determined in the prior proceeding.

[20]         The pre-conditions to making out issue estoppel are stated in Angle v. Minister of National Revenue, [1975] 2 S.C.R. 248 at 254:

Lord Guest in Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2), at p. 935, defined the requirements of issue estoppel as:

… (1) that the same question has been decided; (2) that the judicial decision which is said to create the estoppel was final; and, (3) that the parties to the judicial decision or their privies were the same persons as the parties to the proceedings in which the estoppel is raised or their privies …..

It seems to me that in the circumstances of this case, all that had to be considered on both motions before the court was whether the criteria set out in Angle had been met and, if they had been met, whether the court should exercise its discretion against applying the doctrine of res judicata.

[30]         In my opinion, it cannot be said that the question of liability for the collision was adjudicated upon in the Small Claims proceeding.  Having decided as a fact that the parties left their respective stop signs at “more or less the same time”, the Small Claims judge failed to consider the other important factual question before him – whether Ms. Bui had her left-turn signal on.  Furthermore, he failed to consider the rules of the road imposed upon each of the parties under the applicable sections of the Motor Vehicle Act, R.S.C.B. 1996, c. 318 and how those rules would apply to the determination of responsibility in tort for the collision.  This was not a case of inevitable accident or of no negligence.  One or the other of the parties was wholly responsible, or liability was to be divided.

[31]         The reasons of the Small Claims judge fell well short of deciding the negligence question.  That issue remains alive in the Supreme Court action.  The res judicata arguments of both parties fail.

[32]         The above is enough to allow this appeal.


How Do BC Courts Determine Fault for a Crash?: The "But For" Test

June 28th, 2010

When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.

BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.

In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.

The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct – every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.


$170,000 Non-Pecs for MTBI, Impaired Driver Found "Grossly Negligent"

June 28th, 2010

Reasons for judgement were released this week by the BC Supreme Court awarding a Plaintiff just over $415,000 in total damages as a result of serious injuries occurring in a motor vehicle collision.

In this week’s case (Eggleston v. Watson) the pedestrian Plaintiff was struck by a vehicle driven by the Defendant.  The Defendant had just left a pub and had a blood alcohol level well over the legal limit.  the Defendant was criminally convicted for driving with an unlawful blood alcohol limit.

As a result of this criminal conviction the Defendant was in breach of his ICBC insurance.  He defended the lawsuit personally and ICBC defended as a statutory third party.

The Defendant never saw the Plaintiff (who was walking in the Defendant’s lane of travel in the same direction) prior to hitting him.   Despite this, and despite the criminal conviction, both the Defendant and ICBC argued that the Plaintiff was mostly at fault for this incident.  Mr. Justice Davies disagreed and found that the defendant was at fault holding that “(his) ability to operate a motor vehicle at the time that he struck (the Plaintiff) was so impaired by his consumption  of alcohol that his actions in so doing were not only negligent, but grossly negligent“.

The Court went on to find that while the Plaintiff was in violation of s. 182 of the Motor Vehicle Act at the time of the crash for not walking on the roadway facing oncoming traffic, he was not partially to blame for this crash.  In reaching this conclusion Mr. Justice Davies reasoned as follows:

[70]        The question is whether Mr. Eggleston’s own conduct in placing himself at some risk that a severely impaired driver would not see him in time to apply his vehicle’s brakes or otherwise avoid a collision requires an apportionment of some liability to him for his injuries.

[71]        In all of the circumstances I find, as did Kirkpatrick J. in Laface, that Mr. Watson’s conduct was so unforeseeable, and the risk of injury from Mr. Eggleston’s failure to take more care so unlikely that “it is simply not appropriate” to find that Mr. Eggleston was contributorily negligent.

[72]        If I am wrong in that conclusion, based upon the analysis and conclusions of Esson J.A. in Giuliani, I would assess Mr. Eggleston’s fault in failing to avoid the collision to be no more than 5%.

The Court then awarded the Plaintiff $170,000 for his non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his serious injuries which included a mild traumatic brain injury (MTBI).  In arriving at this figure the Court provided the following reasons:

[145]     After considering the totality of the evidence in this trial including the medical evidence adduced by the parties, I have concluded that Mr. Eggleston has proven that it is more likely than not that he suffered a mild traumatic brain injury in the collision of June 9, 2009.

[146]     I also find that the mild traumatic brain injury he suffered is the primary cause of the emotional, social and cognitive difficulties he has exhibited and endured over the more than three years between the date of the accident and the start of the trial, and which will continue to impact his future suffering and enjoyment of life…

[157]     In addition to the mild traumatic brain injury that I find has been the primary cause of Mr. Eggleston’s past social, emotional, and cognitive problems as well his as continuing problems with serious headaches, all of which will likely continue to impact his future, as well as the balance difficulties that I find were caused by the collision, I also find that the evidence establishes on a balance of probabilities that Mr. Watson’s negligence caused the following physical injuries which Mr. Eggleston has suffered and from some of which continues to suffer:

1)        Significant soft tissue injuries and bruising which were ongoing until at least January of 2007 when he was seen by Dr. Travlos.

2)        A traumatic umbilical hernia which was successfully operated upon on May 29, 2007.

3)        Injuries to his right shoulder including a torn biceps tendon, impingement syndrome and a rotator cuff tear which were operated on without success on December 5, 2007, and which in the opinion of Dr. Leith, require further surgery.

4)        Injuries to his lower back which aggravated existing back problems from which he had largely recovered prior to the collision. Those lower back injuries have impacted on his ability to drive the water truck in his work for Mr. Palfi and in respect of which I accept Dr. Leith’s opinion of June 2, 2009.

[158]     In addition to those specific physical injuries, I accept the evidence of Dr. Travlos, Dr. Cameron, Dr. Smith and Dr. Bishop that Mr. Eggleston has suffered and continues to suffer from psychological problems arising from his brain injuries and the pain associated with the physical injuries suffered in the collision. That pain was chronic until at least June of 2009 but was relieved to a large extent by narcotic and other medications thereafter until Mr. Eggleston determined to wean himself off Dilaudid. He now again has more pain and is also likely suffering the continuing effects of withdrawal. However, his present work history convinces me that within the neurological and cognitive limits that may still compromise his recovery, his future suffering from chronic pain will likely be capable of amelioration with psychological counselling and pain management assistance without narcotic intervention.

[159]     In determining the appropriate award to compensate Mr. Eggleston for the injuries suffered in the collision, I have considered all of the injuries suffered by him that were caused by Mr. Watson’s negligence, their devastating effect upon his ability to enjoy the active life involving horses and his relationship with friends and family surrounding that lifestyle that he formerly enjoyed.

[160]     I have also considered the pain Mr. Eggleston has endured and will likely continue to endure at least at some level, the compromise of his role as the leader of his family and the loss of his self-esteem, the length of time over which he has already suffered those losses, the prospect of the continuation of those losses into the future, albeit at a less intense level than in the past, and the fact that he will again have to undergo surgery in an attempt to repair his shoulder injuries.

[161]     In addition, I have considered the situation that has existed since March of 2008 when Mr. Eggleston returned to work, in that the work he does drains him of energy so that his life has become somewhat one-dimensional, centering upon work and recovery from its daily effects upon him to the continued detriment of his ability to enjoy life.

[162]     Finally, I have considered all of the authorities which have been provided to me by counsel and which offer some guidance as to the appropriate range of damages for injuries such as those suffered by Mr. Eggleston but which are of course dependent on their unique fact situations.

[163]     I have concluded that in the totality of the circumstances an award of non-pecuniary damages in the amount of $170,000 will appropriately compensate Mr. Eggleston for his pain and suffering and loss of enjoyment of life caused by Mr. Watson’s negligence.


The Inability to Afford Therapy and the Duty to Mitigate Damages

June 25th, 2010

As I’ve recently written, a Plaintiff has a duty to ‘mitigate‘ their losses after being injured otherwise the damages they are entitled to can be reduced.

The most common example of the ‘failure to mitigate’ defence comes up in personal injury claims where defence lawyers argue that a Plaintiff would have recovered more quickly and more completely had they followed through with all of the suggestions of their medical practitioners.  If evidence supporting such an argument is accepted then the Plaintiff’s award can be reduced.

What if a Plaintiff can’t afford to purchase all the therapies/medications recommended by their physicians?  Can their damage award be reduced in these circumstances?  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this issue.

In this week’s case (Trites v. Penner) the Plaintiff, an apprentice plumber, was injured in a forceful rear end collision in 2005.  Fault for the crash was admitted by the rear motorist.  The trial focused on the value of the Plaintiff’s claim.

The Plaintiff suffered various soft tissue injuries.  He followed a course of therapy in the months that followed and enjoyed some improvement in his symptoms.  During his recovery ICBC (the Plaintiff’s insurer for ‘no fault’ benefits) discontinued “funding for (the Plaintiff’s) efforts at rehabilitation.”

At trial the Defence lawyer argued that the Plaintiff should have followed through with these therapies in any event and that his damages should be reduced for failure to mitigate.   Madam Justice Ker disagreed and took the Plaintiff’s inability to pay for his therapies into consideration.  The Court provided the following reasons:

[209] Financial circumstances are certainly one factor to consider in the overall reasonableness assessment of whether a plaintiff has failed to mitigate their losses.  What is reasonable will depend on all the surrounding circumstances.  One significant factor in this case however, is that as Mr. Trites was on his upward climb to recovery, ICBC determined that it would discontinue funding his efforts at rehabilitation.  As a consequence, Mr. Trites was left to fund his continued rehabilitation on his own.  Instrumental to continuing his recovery and functioning was not only attendance at the gym but other treatment modalities including massage therapy and chiropractic treatments and taking prescription medication.  All of these items had significant benefits to Mr. Trites but they also carried with them significant costs.  In the first half of 2007, Mr. Trites was unable to fund all these aspects of treatment and chose the prescription medication as it was essential to his pain management on a daily basis.

[210] I find that in these circumstances, Mr. Trites’ decision not to continue with a gym pass on a monthly basis for the first six months of 2007 was not unreasonable.  This is not a case where the plaintiff has refused to take recommended treatment.  Rather Mr. Trites was engaged in all aspects of the recommended treatments and ICBC was, until December 2006, paying for them.  Thereafter ICBC unilaterally discontinued paying for these treatments, notwithstanding the fact that Mr. Trites was not yet fully recovered.  I cannot find that Mr. Trites acted unreasonably in determining how best to try and pay for all the treatment modalities that had been working for him in assisting his rehabilitation but were no longer going to be paid for by ICBC and were beyond his limited means at the time.  As Smith J. noted in O’Rourke v. Claire, [1997] B.C.J. No. 630 (S.C.) at para. 42 “it does not lie in the mouth of the tortfeasor to say that a plaintiff in such circumstances has failed to mitigate by failing to arrange and pay for his own rehabilitative treatment.”

[211] Accordingly, I find that the defence has not discharged its burden of establishing that Mr. Trites failed to mitigate his losses in this case.

You may be wondering if ICBC is allowed to, on the one hand deny a Plaintiff rehabilitation benefits, and on the other have the Defendant’s lawyer argue at trial that the Plaintiff should have pursued these benefits and therefor reduce the Plaintiff’s award.  The answer is yes and you can click here to read a previous article discussing this area of law, and here for the latest from the BC Court of Appeal on this topic.

Today’s case is also worth reviewing for the Court’s discussion of non-pecuniary damages and diminished earning capacity.

The Court accepted that the Plaintiff suffered moderate soft tissue injuries to his neck and back and these had a ‘guarded’ prognosis for full recovery.   $75,000 was awarded for his non-pecuniary damages and the Court’s reasons addressing this can be found at paragraphs 188-198.

The Plaintiff was also awarded $250,000 for diminished earning capacity.  He was an apprentice plumber and, despite his injuries, was able to continue to work in this trade in the years that followed the collision.  However he struggled in his profession and there was evidence he may have to retrain.  The court’s lengthy discussion addressing his diminished earning capacity can be found at paragraphs 213-239.


Who's the Expert? The Rule Against "Corporate Reports"

June 25th, 2010

When a party introduces an expert report at trial in the BC Supreme Court one of the requirements is that the report sets out “the name of the person primarily responsible for the content of the statement“.  If a party fails to do so they risk having the report excluded from evidence.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.

In this week’s case (Jones v. Ma) the Plaintiff was involved in a motor vehicle accident.  She sued for damages.  Fault was at issue and in support of their case the Defendants hired an engineering firm who produced an accident reconstruction report.  The report was signed by a Forensic Engineer.

The Plaintiff objected to the admission of the report arguing that it was not the report of the expert who signed it, rather it was “a corporate report which embodies the observations and opinions of several individuals, without clearly distinguishing who made the various observations on which the opinions are based and who engaged in the process of forming the opinions that are expressed in the report.”

The Engineer was cross examined and it become evident that “the majority of the work on the report was not done by (the engineer that signed it), but rather by other persons in the firm he works for”.  The Court went on to exclude the report from evidence.  Mr. Justice Ehrcke provided the following useful summary and application of the law:

[11]         This is not simply a matter of form. The purpose of the rule is to ensure fairness to both parties by providing the party on whom the report is served with adequate notice to enable them to effectively cross-examine the expert and to properly instruct their own expert if they choose to retain one.

[12]         The relevant case law was reviewed by Burnyeat J. in Dhaliwal v. Bassi, 2007 BCSC 548, 73 B.C.L.R. (4th) 170. In that case, the Court was presented with an expert report of a Dr. Passey who, in forming his opinions, relied on psychological questionnaires administered by a Dr. Ross. Mr. Justice Burnyeat wrote…:

[4]        The purposes of Rule 40A are clear:  (a) neither side should be taken by surprise by expert evidence (Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (B.C.C.A.) at para. 33) and neither side should be ambushed or surprised at trial; (b) to ensure fairness to the parties and to promote the orderly progression of the trial (C.A. v. Critchley(1996), 4 C.P.C. (4th) 269 (B.C.S.C.) at para. 15). The burden on Mr. Bassi to show that I should exercise my discretion to allow the report to be introduced has been described as a:  “… relatively heavy burden ….”:  McKay v. Passmore, [2005] B.C.J. (Q.L.) No. 1232 (B.C.S.C.), at para. 26. The question which arises is whether there is “… substantial and irremediable prejudice ….” so as to justify the exclusion of the report on the basis that the statement does not comply with Rule 40A(5)(c) of the Rules of Court:  C.A. v. Critchley,supra, at para. 12…

In my view, a document is not a written statement setting out the opinion of an expert unless it appears clearly from the face of that document that the opinions in it are those of the individual expert who prepared and signed the statement. Our rules make no provision for the entry in evidence of joint or corporate opinions. The opinion must be that of an individual expert and it must fall, of course, within the scope of her own expertise. The opinion cannot simply be a reporting of the opinions of others. The statement, to be admissible, must show clearly that this is the case.

I find some support for this view in the decision of my brother Judge Macdonald in Emil Anderson Construction Co. Ltd. … As that case points out, there is a real possibility of procedural prejudice to cross-examining counsel if he or she cannot tell from the report which of the opinions are truly those held by the witness giving evidence and which are simply opinions of other team members reported to her and asserted by her in the written report. (at paras. 11-12)

[10]      Unless the authors of all parts of an opinion are known, unless the qualifications of each person contributing to the opinion are known, and unless the facts upon which each of the persons contributing to an opinion are set out, the cross-examination of an expert witness regarding the opinion that had been provided would be impossible.

[13]         In my view, the report tendered by the defendant in the present case does not comply with the requirements of Rule 40A(5), and it would cause irreparable prejudice to the plaintiff if the report were admitted.

[14]         The report is excluded from evidence.

I should point out that this case was decided relying on the current BC Supreme Court Rule 40A(5)(c).  As readers of this blog know the BC Supreme Court Rules are being overhauled on July 1, 2010 and some of the biggest changes relate to the rule concerning expert opinion evidence.

Rule 40A(5)(c) reads that “The statement shall set out or be accompanied by a supplementary statement setting out…the name of the person primarily responsible for the content of the statement.”

The new rule dealing with the content of expert reports is Rule 11-6 which states

An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:

(a) the expert’s name, address and area of expertise;…”

While the language has changed somewhat the underlying purpose of the requirement appears the same and that is to not prejudice the opposing party’s ability to cross examine the opinion.  It seems this case will retain its value as a precedent under the New BC Supreme Court Rules but time will tell.


Personal Injury Claims and The "Admission" Exception to the Hearsay Rule

June 24th, 2010

Hearsay is an out of Court statement introduced at trial for the truth of its contents.  Generally hearsay evidence is not admissible in Court but there are several exceptions to this.

One well established exception to the hearsay rule is the rule of “admissions against interest“.  If a party to a lawsuit says something that hurts their interests that statement can generally be admitted in Court for its truth.  Reasons for judgement were released today discussing this important principle in a personal injury lawsuit.

In today’s case (Jones v. Ma) the Plaintiff was injured in a BC motor vehicle collision.   After the crash the Plaintiff approached the Defendant and the Defendant admitted fault.   The Plaintiff then asked the Defendant’s permission to record their discussion using her cell-phone.  The Defendant consented and repeated this admission of fault.

In the formal lawsuit the Defendant denied being at fault for the crash and instead sought to blame the Plaintiff.  At trial the Plaintiff introduced the the cell phone recording into evidence.  The Defendant objected arguing that this was inadmissible hearsay.  Mr. Justice Ehrcke disagreed and admitted the evidence finding that if fit the “admissions” exception to the hearsay rule.  In reaching this decision the Court provided the following useful summary and application of the law:

…the admissibility of an out of court admission by a party to a lawsuit….was specifically addressed by the Ontario Court of Appeal in R. v. Foreman (2002), 62 O.R. (3d) 204 (C.A.). In that case Doherty J.A., delivering the judgment of the Court, said at pages 215 to 216:

Admissions, which in the broad sense refer to any statement made by a litigant and tendered as evidence at trial by the opposing party, are admitted without any necessity/reliability analysis. As Sopinka J. explained in R. v. Evans [1993] 3 S.C.R. 653, at page 664:

The rationale for admitting admissions has a different basis than other exceptions to the hearsay rule. Indeed, it is open to dispute whether the evidence is hearsay at all.The practical effect of this doctrinal distinction is that in lieu of seeking independent circumstantial guarantees of trustworthiness, it is sufficient that the evidence is tendered against a party. Its admissibility rests on the theory of the adversary system that what a party has previously stated can be admitted against the party in whose mouth it does not lie to complain of the unreliability of his or her own statements. As stated by Morgan, “[a] party can hardly object that he had no opportunity to cross-examine himself or that he is unworthy of credence save when speaking under sanction of oath” (Morgan, “Basic Problems of Evidence” (1963), pp. 265-6, quoted in McCormick on Evidence, ibid., p. 140). The rule is the same for both criminal and civil cases subject to the special rules governing confessions which apply in criminal cases.  [Emphasis in original].

[10]         I agree with that statement of the law. It was adopted by our Court of Appeal in R. v. Terrico, 2005 BCCA 361. Admissions made by one party to litigation are generally admissible if tendered by the opposing party, without resort to any necessity/reliability analysis.

[11]         The evidence tendered by the plaintiff in this case of her conversation with the defendant Ma at the scene of the accident is admissible in evidence.

[12]         The cell phone recording which was marked as Exhibit A on the voir dire and the transcript of the recording which was marked as Exhibit B may now both be marked as exhibits on the trial proper.

[13]         The fact that the defendant did not understand at the time of the conversation that what she said might be used in litigation is not a basis for excluding the evidence. This is a civil case. Unlike a criminal case, there is no issue here about voluntariness of a statement to a person in authority and no issue about compliance with the requirements of theCanadian Charter of Rights and Freedoms. Counsel for the defendant agrees that the plaintiff was not a person in authority and that she was not a state agent, as those terms are used in the context of confessions in criminal cases.

[14]         The defendant’s concern that only part of the conversation was recorded, that the defendant had hurt her head, that the defendant did not know the use to which the recording would be put, and that the statement might therefore not be reliable, are matters that can be explored in cross-examination and may go to the weight to be attached to this evidence. They do not form a basis for the exclusion of the evidence.


More on ICBC Injury Claims and Plaintiff Credibility

June 24th, 2010

As I’ve previously written, Plaintiff credibility plays an important role in most personal injury lawsuits.  This is particularly true in soft tissue injury cases.  Reasons for judgement were released today by the BC Supreme Court highlighting the impact that an adverse finding of credibility can have on a claim.

In today’s case (Sarowa v. Gill) the Plaintiff was injured in a 2006 motor vehicle collision in the lower mainland.  The defendant lost control of his vehicle and entered the Plaintiff’s lane of travel causing an impact which resulted in “significant damage” to the Plaintiff’s vehicle.  Fault was admitted focusing the trial on the value of the Plaintiff’s personal injury claim.

The Plaintiff gave evidence that that she suffered various soft tissue injuries which continued to bother her by the time of trial.  This was supported by the evidence of a physiatrist.  However, the Physiatrists evidence was not accepted by the Court because of  “deficiencies, omissions, and factual errors in (the doctor’s) report“.

Instead the Court preferred the evidence of Dr. Boyle, an orthopaedic surgeon ICBC arranged for the Plaintiff to see.  Dr. Boyle’s evidence included the following damaging observations:

Dr. Boyle’s opinion was that she had suffered a myofascial strain of the cervical and lumbar muscles as a result of the accident, but that the injury was mild.  He observed Ms. Sarowa to display exaggerated “pain behaviour” throughout the interview and examination.  He noted that she moaned, groaned and grimaced.  He said that patients who are in pain generally avoid a lot of movement in order to avoid discomfort, but Ms. Sarowa was restless.  When she was specifically asked to demonstrate range of motion it appeared quite limited, but she demonstrated a much freer range of motion spontaneously during the interview and other parts of his assessment.  He said that she could freely straight-leg raise from a sitting position, but couldn’t bend forward when standing ? an inconsistent presentation from an anatomical point of view.

The Court went onto to award little in the way of damages and in doing so made the following findings about the Plaintiff’s credibility:

[68]         Ms. Sarowa testified that she has not fully recovered from her accident injuries and continues to have neck and back discomfort, and frequent headaches.  As is usually the case, much of the plaintiff’s case rests on the extent to which the plaintiff is found to be a credible witness.  In this case, Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive and non-responsive.  She was unable, or declined, to explain why she had claimed to be separated from her husband on December 31, 2007 when filing her 2007 tax return; but claimed at trial that she and her husband were back together at that time.

[69]         If she was being truthful at trial about the severity and duration of her accident injuries, than I would have to conclude that she omitted relevant information about her health when she applied for the job at Tim Horton’s in April 2007, and was deliberately untruthful when she applied for work at Brinks in September 2008.  I think it more likely that she was exaggerating the severity and duration of her injuries when testifying here at trial; as the evidence of her employers at Tim Horton’s and Brinks indicates she did not, in fact, demonstrate any difficulty with the physical performance of her job duties.

For those interested in this topic, this case is worth reviewing in full to get a sense of some of the factors courts look to when weighing a Plaintiff’s credibility in a soft tissue injury prosecution.


BCCA Finds Courts Can Consider Insurance Under Rule 37B

June 23rd, 2010

Very important reasons for judgement were released recently by the BC Court of Appeal addressing a key factor under Rule 37B.

By way of brief introduction Rule 37B is the current rule dealing with formal settlement offers.   (Rule 37B will be replaced with Rule 9 next month but the new rule uses language that is almost identical to Rule 37B).

The Court can take formal settlement offers into account when awarding a party costs.  One factor the Court can consider in deciding whether to award costs or increased costs under Rule 37B is “the relative financial circumstances of the parties“.

In most personal injury lawsuits Defendants are insured such that they don’t have a significant financial stake in the outcome of the trial.  BC Supreme Court judges have been conflicted in whether insurance is a relevant consideration when viewing the financial circumstances of the parties.  Today the BC Court of Appeal addressed this issue for the first time.

In today’s case (Smith v. Tedford) the Plaintiff was injured in a motor vehicle collision.  Before trial the Plaintiff made a formal settlement offer.   Several days into trial the Defendant accepted the offer.   The parties could not agree on the costs consequences.  The trial judge awarded the Plaintiff costs to the time the offer was made and double costs for the time spent at trial.  (You can click here to read my post summarizing the trial judge’s reasons).  In doing so the Judge considered the fact that the Defendant was insured with ICBC as relevant to his ‘financial circumstances“.

ICBC, on behalf of the Defendant, appealed arguing that the Judge was wrong to consider insurance.   In a welcome development the BC Court of Appeal found as follows:

While I recognize arguments over the implications of a defendant’s insurance coverage being considered in relation to an award of costs may go back and forth, like the judge I consider precluding such from consideration renders an assessment of the parties’ relative financial circumstances, at least in a case of this kind, very artificial indeed. Clearly, with ICBC having assumed the defence, the financial ability to defend was much greater than the financial ability to prosecute, and that is of no small importance to considering whether and to what extent the financial circumstances of the parties, relative to each other, bear on an award of costs where, as here, there has been an offer of settlement made ten days before a trial for the assessment of personal injury damages which was not accepted until the seventh day of the trial.


Formal Settlement Offers and Strict Compliance with Rule 37B

June 23rd, 2010

Reasons for judgement were released today considering whether strict compliance with Rule 37B is required for a Court to award a successful party Double Costs after beating a formal settlement offer at trial.

In today’s case (Eigeard v. Muench) the Plaintiff sued for personal injuries.  Prior to trial the Plaintiff made a written settlement offer to resolve the claim for $107,500.  The claim went to trial and the Plaintiff enjoyed success with a Jury awarding more than settlement offer.

The Plaintiff then asked the Court to award Double Costs under Rule 37B.  The Defendant objected arguing that the formal offer did not strictly comply with Rue 37B(1)(c)(iii) which requires formal offers to contain the following sentence:

“The ….[name of party making the offer]…. reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.”

The Plaintiff argued that the Court still had the discretion to award double costs because “the defendant’s insurers are sophisticated and understood the content of the offer and there is no confusion.” and that “this was a legitimate attempt by the plaintiff to resolve the action.

Madam Justice Hyslop disagreed and concluded that the Court did not have the discretion to award double costs in these circumstances.  The Court went onto summarize the applicable law as follows:

[16] In Roach, the exact words of Rule 37B(1)(c)(iii) were not contained in the offer to settle pursuant to Rule 37B. Despite this, the trial judge ordered double costs. This was one of the grounds of appeal.

[17]         The offer to settle was in the form of a letter directed to counsel. The letter set out an offer of settlement and then stated:

We reserve the right to bring this letter to the attention of the judge as a matter of costs in accordance with Rules 37 and 37A. [para. 32]

[18]         Madam Justice Prowse, writing for the Court, stated:

[35] It is not disputed that the terms of Ms. Roach’s offer substantially complied with the requirements of an offer under Rule 37B(1)(c): it was made in writing; it was delivered to Mr. Dutra (through his counsel); and it contained a sentence in terms similar to those set forth in subrule (1)(c)(iii). Nor is there any suggestion that Mr. Dutra was misled by the offer in any way, or that he believed that he could disregard the offer with impunity with respect to costs because it did not track subrule (1)(c)(iii) word-for-word. Rather, Mr. Dutra takes what appears to be the highly technical point that if an offer does not contain the exact wording set out in subrule (1)(c)(iii), it does not come within the definition of an “offer to settle” within the meaning of Rule 37B(1) and, therefore, cannot attract an award of double costs.

[19]         Madam Justice Prowse considered both a strict and relaxed interpretation of Rule 37B(1). In doing so, she reviewed the history of Rule 37 and the enactment of Rule 37B.

[20]         She concluded that the enactment of Rule 37B was a move away from strict compliance as was the situation of Rule 37. In considering the offer, Madam Justice Prowse stated at para. 52:

That said, I am also of the view that the wording of the offer must be substantially compliant with the wording of subrule 1(c)(iii) such that no reasonable person could be misled as to the intent of the offer or the fact that it was an offer within the meaning of Rule 37B. In other words, the offer must be in writing, the wording must make it clear what party is making the offer and to whom it is made, and it must include the fact that the party making the offer is reserving the right to bring the offer to the attention of the court in relation to costs after judgment on all other issues in the proceeding.

[21]         The court in Roach upheld the trial judge’s finding that the offer meant the requirements of Rule 37B. At para. 54, Madam Justice Prowse endorsed the trial judge’s admonition that:

…counsel would be well advised to ensure that the language of their offers complies precisely with subrule 1(c)(iii) (and, in future, Rule 9-1) to avoid any possibility of their offers being found deficient. In this case, the offer was made just days after the new rule came into effect. It may be that the same measure of flexibility will not be accorded to offers in the future which are non-compliant. That is especially so if it proves that flexibility in the application of the Rule undermines its purpose of encouraging settlement of disputes in a fair, timely and cost-efficient manner, in accordance with the object and spirit of the Rules as a whole.

Madam Justice Hyslop then dismissed the application for double costs with the following reasons:

[25]         The offer does not meet the criteria set out in Roach. Rules 37(22) and (37) address the consequence of accepting an offer. There is nothing in the offer of the plaintiff to suggest that the plaintiff intends to bring the offer to the trial judge’s attention as it relates to costs.

[26]         The court’s discretion under Rule 37B comes into play after the court determines whether the offer complies with Rule 37B(1)(c) and as interpreted by Roach.

[27]         I dismiss the plaintiff’s application for double costs. The defendant shall have costs of this application pursuant to scale B to be set off against the costs otherwise awarded to the plaintiff.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B so this case will likely retain its value as a precedent moving forward.