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 October, 2010

Wage Loss Claims for Stay-At-Home Parents Intending on Returning to the Workforce

October 30th, 2010

Although stay-at-home parents are becoming less and less common many parents still take several years away from the workforce to raise their children in their infant and pre-school years.  Often times these parents intend to return to work after their children attend school on a full time basis.

When a parent in these circumstances becomes disabled from working due to the fault of another can they make a claim for loss of income in their tort action?  The answer is yes provided there is evidence establishing  a likelihood of returning to employment absent the accident related disability.   Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of law.

In last week’s case (Carr v. Simpson) the Plaintiff was seriously injured in a 2005 motor vehicle collision.  The Defendant admitted fault and further admitted that the crash injured the plaintiff but took issue with the value of her claims for various damages including for income loss.

The Plaintiff, a 39 year old mother of three at the time of the collision, was out of the workforce for several years prior to the crash.  She spent these years working as a home-maker and raising her children.  She undertook some modest employment as a house cleaner shortly prior to the crash.  Following the crash she became disabled and did not return to any work from the time of the crash to the time of trial.

The Court accepted the Plaintiff sustained serious, permanent and partly disabling injuries due to the crash.  The Plaintiff sought damages of $84,000 for lost income from the time of the crash to the time of trial.  She argued that she had planned on returning to the work force once her children became school-aged (which was around the time of the crash) but was precluded in doing so as a result of her injuries.  The Defendant disagreed arguing that the Plaintiff suffered only a modest loss of income because of her “inconsistent work history (and) lack of incentive to work because of income from other sources.

Mr. Justice Bernard sided with the Plaintiff and awarded her most of what she sought for past income loss.  In doing so the Court provide the following useful reasons addressing the reality that parents that leave the workforce to raise young children can still succeed in an income loss claim:

[132]     I reject the notion that Ms. Carr’s unemployment history during her child-rearing years made her return to the workforce less realistic or less likely. Ms. Carr did not harbour fanciful ideas about her capabilities, her income-earning potential, or her opportunities for employment. When her youngest child reached school age, Ms. Carr was relatively young, energetic, able-bodied, willing to work hard, prepared to accept modest wages in exchange for her labours, and was fortunate to have a brother who could offer her steady, secure, and reasonably well-remunerated employment.

[133]     The evidence establishes that Ms. Carr, shortly before the collision, was motivated to earn some income (e.g., from housecleaning) until her youngest child was enrolled in school; thereafter, she planned to seek more fulsome employment. I do not accept the defence submission that Ms. Carr lacked the incentive and/or need to earn an income; to the contrary, since she has been unable to work because of her injuries she has, with some reluctance, turned to her mother for ongoing loans of relatively large sums of money, just to get by.

[134]     Ms. Carr became a single parent as of June 1, 2005. I find it highly likely that this new status would have impelled her to take the employment her brother offered, and to do so immediately. Her newly poor economic circumstances would have necessitated that Ms. Carr make child-care arrangements to bridge the time until her youngest child was in school in September 2005, and would have motivated her to work as many hours as she could manage as a single parent. Similarly, I am satisfied that she would have made any necessary arrangements for the care of her father.

[135]     I also find it is highly likely that Ms. Carr, as an employee of her brother, would have worked the hours and received the rates of pay assumed by Mr. Bush in his calculations. I find it is most unlikely that the seasonal aspect of the work would have reduced Ms. Carr’s overall income. Any shortage of work in the slow season would be offset by the demands of the busy season, and I am satisfied that Ms. Carr would have adjusted her life, accordingly.

[136]     While I am unable to agree with the plaintiff’s submission that in the determination of past wage loss there should be no reduction for negative contingencies, I am satisfied, for the relatively predictable period in question, the reduction must be minor.

[137]     Having regard for all the foregoing, I assess the plaintiff’s past wage loss at $75,000.

This case is also worth reviewing for the Court’s discussion of non-pecuniary damages.  The Plaintiff sustained numerious injuries including soft tissue injuries to her neck and upper back, Thoracic Outlet Syndrome, headaches and dizziness, a right hand and wrist injury which required surgery, a meniscus tear that required surgery, low back pain and depression related to chrobic pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Bernard provided the following reasons:

125]     Ms. Carr has, at age 44, many years ahead of her. As a result of the defendant’s negligence, Ms. Carr has been permanently partially disabled and left with constant and chronic pain. Since the collision, Ms. Carr has undergone two surgeries and endured considerable pain and discomfort. Ms. Carr has developed TOS and surgery is not recommended. She suffers from clinical depression related to the negative effect her injuries has had upon her, her family, and her way of life. Ms. Carr’s mental acuity and concentration has slipped. Ms. Carr’s marriage ended six months after she sustained her injuries. Her husband was unsympathetic and frustrated by her lack of desire for sex due to her discomfort. Ms. Carr has been rendered unemployable for most jobs in a competitive market. She is now unable to enjoy most leisure activities and active social pursuits with her children. She has a special fondness for horses and gardening, but meaningful participation in activities related to these interests is no longer feasible. Ms. Carr has lost much of the satisfaction from gainful employment, and the purpose and dimension it gives to life. In short, the negligence of the defendant has had a profoundly negative and lasting impact upon Ms. Carr.

[126]     I agree with the plaintiff’s position that the Djukic case is most similar of the proffered cases on its facts. I also agree with the defendant’s submission that Ms. Djukic’s pain was more severe than that of Ms. Carr; otherwise, I am persuaded that Djukic a useful reference point for the upper end of a general damages award in this case; and that Cimino is instructive in determining the lower end.

[127]     Having regard to all the foregoing, I assess Ms. Carr’s general damages at $100,000.


$30,000 Awarded for Moderate, Lingering Soft Tissue Injuries

October 29th, 2010

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages as a result of injuries and losses from a motor vehicle collision.

In today’s case (Rothenbusch v. Van Boeyen) the Plaintiff was involved in a 2 vehicle intersection collision in Mission, BC in 2007.  The Plaintiff was making a left hand turn when his vehicle collided with the on-coming defendant.  The Court found the Plaintiff 30% at fault for failing to yield to the Defendant’s right of way and the Defendant 70% at fault for speeding, failing to keep a proper lookout and failing to take proper evasive maneuvers when he had the opportunity to do so.

The Plaintiff claimed compensation for various injuries although the Court found the Plaintiff failed to prove that some of his more serious injuries were caused by the crash.  Ultimately Madam Justice Ker found the collision caused various soft tissue injuries which did not fully recovery.  The Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $30,000.  In arriving at this amount Madam Justice Ker provided the following reasons:

[180] Mr. Rothenbusch was almost 81 years of age at the time of the accident.  Although retired from hog farming, Mr. Rothenbusch remained active in the community, curling two or three times a week and engaging in volunteer pastoral work at a senior’s lodge and visiting people in the hospital. He also helped a friend at a berry farm by planting and pruning throughout the year and in picking berries during the summer season. In addition to being a hog farmer, Mr. Rothenbusch worked in construction and as a plumber and continued to do his own home repairs and helped others in this area….

242] In the end, the totality of the evidence supports the conclusion Mr. Rothenbusch sustained moderate soft tissue injuries to his neck, lumbar spine, left scapula and left ribs as well as cuts to his face as a result of the accident. The evidence further supports the conclusion that the major disabilities from the injuries were largely resolved by the end of December 2007. However, Mr. Rothenbusch continues to experience intermittent neck and shoulder pain as a result of the injuries from the accident, and he is still restricted in his range of motion for his neck and shoulder. These continuing symptoms have, in part, impacted on his ability to return to all his pre-accident activities….

[255] Mr. Rothenbusch continues to experience intermittent pain in his neck and continues to have difficulties with his shoulder. He is not able to engage in some of the home repair, plumbing activities or berry picking activities he enjoyed prior to the accident.

[256] Although Mr. Rothenbusch may not be as active as a younger plaintiff, it is important to bear in mind that as one advances in life, activities and pleasures sometimes become more limited. In that respect, impairment of the limited activities and pleasures which an individual can engage in becomes more serious: Williams at para. 17.

[257] Having regard to all the circumstances and taking what guidance I can from the authorities provided by counsel, I assess Mr. Rothenbusch’s non-pecuniary damages at $30,000.

In addition to the above, the decision is worth reviewing for the Court’s thorough discussion of “in-trust” claims (claims where plaintiff’s seek compensation on behalf of others who have provided them assistance with their accident related disabilities) which are set out in paragraphs 260-290 of the judgement.


"Psychological Disturbance" Not Compensable Even With Presence of Physical Injuries

October 29th, 2010

Important reasons for judgement were released today by the BC Supreme Court, Campbell River Registry, discussing the law for compensation for psychological injuries following a motor vehicle collision.  In short the Court held that “psychological disturbance” not meeting the level of a recognized psychiatric illness is not compensable in BC, even in the presence of accident related physical injuries.

In today’s case (Schulze v. Strain) the Plaintiff, who was 4 years old at the time, was involved in a serious motor vehicle collision in 2007.  The Plaintiff was a passenger in a vehicle with his family.  The vehicle was involved in a collision at approximately 50 kmph and the force of impact was “considerable“.  Despite the severity of the collision the Plaintiff suffered minor injuries which made a full and complete recovery.

In addition to the physical injury, the young plaintiff suffered “psychological disturbance” with the Court finding that the Plaintiff was “emotionally upset…was having nightmares….did not want to travel in a car…(and was) reluctant to talk about the accident“.   Although the Plaintiff was emotionally effected the consequences were not severe enough to cause a recognized psychiatric illness.  The Plaintiff asked for damages in the range of $25,000 – $30,000 arguing that this is a fair range for a “moderate psychological injury”.

Mr. Justice Halfyard disagreed and ruled that mere “psychological disturbance” cannot be compensated in British Columbia even in circumstances where the Plaintiff suffers accident related physical injuries.  Specifically the Court reasoned as follows:

[32]         Having accepted the evidence of Jan’s parents and the evidence of Dr. Ness, I conclude that Jan was extremely frightened by his anticipation of the collision, and then experiencing the collision. Quite naturally, this was fear for his own safety, a fear of being seriously injured. That fear manifested itself in the physical symptoms and the changes in behaviour which I have previously described. Most of his symptoms had subsided within six months. I have found that Jan’s fear of travelling in a motor vehicle had diminished to the point of mere dislike, within about a year of the accident.

[33]         The evidence does not establish that Jan’s psychological disturbance amounted to a recognized psychiatric illness. While I am satisfied that Jan’s psychological disturbance was significant and far above being trivial, I am also not persuaded that the degree and duration of his emotional disturbance supports the conclusion that he sustained “a serious and prolonged injury.” (That was the lesser test which was argued by the plaintiffs in Kotai v. Queen of the North, but which was rejected by Joyce J.)

[34]         In Kotai v. Queen of the North, Mr. Justice Joyce analysed the law in detail in paragraphs 24 through 77 of his reasons. The conclusions that he expressed at paragraphs 64, 69, and 77, if accepted, would be fatal to Jan’s claim for damages for psychological injury. In the opinion of Joyce J., the law requires a plaintiff who advances a claim for psychological injury in circumstances similar to the present case, to prove that he suffered such serious psychological consequences as a result of the defendant’s negligence that they amounted to a recognized psychiatric illness. Counsel for the plaintiff submitted that I did not have to follow Joyce J’s reasoning and that I could properly conclude that proof of a recognized psychiatric illness was not an essential element of liability in the present case.

[35]         I do not accept that submission. Mr. Justice Joyce’s decision was a careful and reasoned decision. He considered numerous authorities in the course of reasoning to his conclusion, and it is not suggested that there were relevant authorities that were not cited to him. Having regard to the long-standing principle established in Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, I conclude that I should follow the reasoning of Mr. Justice Joyce in Kotai v. Queen of the North.  In my opinion, the cases relied on by counsel for the plaintiff have been superseded by subsequent authorities.

[36]         In my opinion, the law does not permit me to award damages to Jan for the psychological disturbance caused to him by the defendant’s negligence. As I see it, damages may only be awarded for the minor physical injury suffered by Jan as a result of the collision.

[37]         I award damages in the amount of $1,500 to Jan for pain and suffering and loss of enjoyment of life.


BC Court of Appeal Clarifies Law of Hearsay Evidence in Expert Reports

October 28th, 2010

Expert reports often contain hearsay evidence.  This is especially true in personal injury cases where expert witnesses review pages upon pages of clinical notes of other physicians in arriving at their opinions.  Today the BC Court of Appeal released useful reasons for judgement confirming that hearsay evidence does not render an expert report inadmissible.  The Court further noted that some types of hearsay evidence in expert reports, even if not independently proven at trial, does not necessarily nullify the experts opinion.

In today’s case (Mazur v. Lucas) the Plaintiff was injured in a 2006 BC motor vehicle collision.  At trial the Plaintiff tendered the report of a psychiatrist.  The trial judge ordered that hearsay portions of the report be redacted and did not permit opposing counsel to cross examine the expert with respect to the redacted portions of the report.  Ultimately the Jury awarded the Plaintiff $528,400 in damages.

The Defendant appealed arguing that the trial judge incorrectly redacted hearsay from the expert reports and unreasonably restricted the cross-examination.  The BC High Court agreed and ordered a new trial.  In doing so the Court repeated the following very useful quote from Mr. Justice Sopinka addressing the reality of hearsay in medical diagnosis:

A physician, for example, daily determines questions of immense importance on the basis of the observations of colleagues, often in the form of second- or third-hand hearsay.  For a court to accord no weight to, or to exclude, this sort of professional judgment, arrived at in accordance with sound medical practices, would be to ignore the strong circumstantial guarantees of trustworthiness that surround it, and would be, in my view, contrary to the approach this Court has taken to the analysis of hearsay evidence in general, exemplified in Ares v. Venner, [1970] S.C.R. 608

The BC Court of Appeal went on to provide the following useful summary of hearsay evidence in expert reports in personal injury lawsuits:

[40]         From these authorities, I would summarize the law on this question as to the admissibility of expert reports containing hearsay evidence as follows:

·                 An expert witness may rely on a variety of sources and resources in opining on the question posed to him.  These may include his own intellectual resources, observations or tests, as well as his review of other experts’ observations and opinions, research and treatises, information from others – this list is not exhaustive.  (See Bryant, The Law of Evidence in Canada, at 834-835)

·                 An expert may rely on hearsay.  One common example in a personal injury context would be the observations of a radiologist contained in an x-ray report.  Another physician may consider it unnecessary to view the actual x-ray himself, preferring to rely on the radiologist’s report.

·                 The weight the trier of fact ultimately places on the opinion of the expert may depend on the degree to which the underlying assumptions have been proven by other admissible evidence.  The weight of the expert opinion may also depend on the reliability of the hearsay, where that hearsay is not proven by other admissible evidence.  Where the hearsay evidence (such as the opinion of other physicians) is an accepted means of decision making within that expert’s expertise, the hearsay may have greater reliability.

·                 The correct judicial response to the question of the admissibility of hearsay evidence in an expert opinion is not to withdraw the evidence from the trier of fact unless, of course, there are some other factors at play such that it will be prejudicial to one party, but rather to address the weight of the opinion and the reliability of the hearsay in an appropriate self-instruction or instruction to a jury.

[41]         The common law is supplemented by the Rules of Court concerning expert reports.  The Rules of Court in force at the time of this trial required an expert to state “the facts and assumptions upon which the opinion is based”.  (Rule 40A(5)(b)).  Rule 11-6(1) which replaces Rule 40A requires the expert to state:

(f) the expert’s reasons for his or her opinion, including

(i)  a description of the factual assumptions on which the opinion is based,

(ii)  a description of any research conducted by the expert that led him or her to form the opinion, and

(iii)  a list of every document, if any, relied on by the expert in forming the opinion.

[42]         New Rule 11-6 expands on what an expert was required to state under old Rule 40A, but does not alter the general principle that it is essential for the trier of fact to know the basis of an expert opinion so that the opinion can be evaluated.  The Rule has a dual purpose.  The second purpose is to allow the opposing party to know the basis of the expert’s opinion so that they or their counsel can properly prepare for, and conduct, cross-examination of the expert, and if appropriate, secure a responsive expert opinion.  Thus, the result of these reasons would be the same if this case had arisen under the new Rules.  There is nothing in these Rules touching directly on the question of the admissibility of hearsay evidence in expert reports.

I have previously written (here and here) that Plaintiff’s need to be wary if relying on a radiologists findings in support of a personal injury claim at trial and ensure that the evidence is independently proven at trial.  Today’s case appears to potentially soften this requirement somewhat.


More Confusion Clarified: Trial Notices Under Former Rules Remain Valid Under New Rules

October 27th, 2010

One of the changes under the New BC Supreme Court Civil Rules relates to setting a matter down for trial.  Under the former rules a Notice of Trial was to be delivered “by a plaintiff after the time has expired for the delivery of a statement of defence or by any party after the close of pleadings“.  Under the new Rule 12-1(2) any party may deliver a Notice of Trial at any time after the commencement of a proceeding.

There has been some debate whether Notices of Trial filed under the former rules remained valid under the new rules or whether parties need to file a new Notice of Trial in these circumstances.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with this procedural issue ruling that a new Notice of Trial is not necessary in circumstances where one was filed under the former rules.

In this week’s case (Sim v. Learmouth) the Plaintiff was injured in a motor vehicle accident.  The lawsuit was started under the former rules.  ICBC, as statutory third party, filed a Notice of Trial and Jury Notice in May, 2009.  The Plaintiff did not file their own jury notice in the time lines required under the former rules.  When the New Rules came into force the Plaintiff served a new Notice of Trial and Jury Notice.  The Plaintiff argued that Rule 12-1(6) requires party’s to file a new Notice of Trial.  ICBC disagreed and argued that the Plaintiff’s jury notice was invalid.

Master Keighley agreed with ICBC and struck the Plaintiff’s Jury Notice.  In doing so the Court explained that party’s do not need to file a Notice of Trial under the New Rules if one was filed under the former rules.  The Court provided the following useful reasons:

[17]         It only remains to be considered whether the transitional provision is effective to allow delivery of a further Notice of Trial and a re-setting of the clock with regards to the filing and serving of a Jury Notice.

[18]         In my view, it is not, for the following reasons:

(a)      The applicant’s delivery of their Notice of Trial and Jury Notice were “steps taken before July 1, 2010”;

(b)      Any right or obligation arising out of delivery of the Notice of Trial had effect on the day of delivery, namely the trial date was secured, subject to an adjournment by agreement or order. It had no other effect thereafter;

(c)      Delivery of the Jury Notice was effective to notify the parties of records as to the applicant’s intention to have a trial by judge and jury on the date of delivery. It had no other effect thereafter, although a jury trial would only be secured by a further step, the payment of jury fees prior to trial. The Notice itself, however, was fully effective on delivery.


Can A Litigation Guardian Be Ordered to Attend an Independent Medical Exam?

October 26th, 2010

(UPDATE:  Please note Leave to Appeal the Below Decision was granted by the BCCA on January 25, 2011)

When a mentally incompetent person brings a lawsuit in BC they must do so through a litigation guardian or a committee.  Generally, when personal injuries are the subject of a lawsuit, the Defendant is entitled to have the Plaintiff attend an ‘independent’ medical exam.  What about the litigation guardian?  Can they be ordered to attend an independent medical exam?  The BC Supreme Court Civil Rules are silent on this point however, reasons for judgement were released today considering this question using the Court’s ‘inherent jurisdiction’.

In today’s case (Bishop v. Minichiello) the Plaintiff was injured in a 2005 motor vehicle collision.  He was an infant at the time and brought the lawsuit by way of litigation guardian.  The Plaintiff became an adult prior to the lawsuit resolving.  Normally, when this occurs, the Plaintiff files an affidavit and overtakes the lawsuit without the litigation guardian.  In today’s case the Plaintiff did not do this apparently because his injuries may have rendered him “unable to appreciate the extent of his own injuries and unable to effectively conduct the litigation on his own behalf.”.

The Defendant brought a motion that both the Plaintiff and his litigation guardian attend a series of medical exams.  The Plaintiff opposed arguing that the Rule authorizing the Court to compel a Plaintiff to attend an Independent Medical Exam does not empower a Court to extend the order to a litigation guardian.  Mr. Justice McEwan noted that while this was true it could be remedied by resorting to the Court’s inherent jurisdiction.  In granting the application the Court noted as follows:

[12] The defendant submits that although Rule 7-6 (1)-(3) makes no specific provision for a person other than the party to be examined to attend and answer questions, Wong (guardian ad litem) v. Wong [2006] B.C.J. No. 3123 (C.A.) established that the court may, in the interests of justice make ancillary orders to give effect to the purpose of the Rules, found in Rule 1(5) [now Rule 1-3]. In Wong, the question was whether the court could order a plaintiff to video tape an examination…

[13]         Rule 20-2 reads:

(3)        Unless a rule otherwise provides, anything that is required or authorized by these Supreme Court Civil Rules to be done by or invoked against a party under disability must:

(b)        be invoked against the party by invoking the same against the party’s litigation guardian.

[14]         Rule 13-1 reads:

(19)      When making an order under these Supreme Court Civil Rules, the court may impose terms and conditions and give directions it considers will further the object of these Supreme Court Civil Rules.

[15]         On the question of inherent jurisdiction I think the characterization found in R & J Siever Holdings Ltd. v. Moldenhauer 2008 BCCA 59, is most apt:

In addition to the powers conferred by the Rules of Court, the Supreme Court of British Columbia, as a superior court of record, has inherent jurisdiction to regulate its practice and procedures so as to prevent abuses of process and miscarriages of justice: see I.H. Jacob, “The Inherent Jurisdiction of the Court” (1970) 23 Current Leg. Prob. 23 at 23-25. As the author said, at 25,

The inherent jurisdiction of the court may be exercised in any given case, notwithstanding that there are Rules of Court governing the circumstances of such case. The powers conferred by the Rules of Court are, generally speaking, additional to, and not in substitution of, powers arising out of the inherent jurisdiction of the court. The two heads of powers are generally cumulative, and not mutually exclusive, so that in any given case, the court is able to proceed under either or both heads of jurisdiction.

[16]         The Rules do not, properly speaking, confer jurisdiction. To the extent that they reflect a consensus of the Judiciary (and the Bar) as to the presumptions, or expectations, or shifts in onus that will contribute to the just and expedient conduct of litigation, they are useful in bringing predictability and stability to civil procedure. To the extent that they do not reflect such a consensus, they cannot be regarded as mandatory impediments to doing the right thing in any particular case.

[17]         The silence of Rule 7-6 on the question of ordering the litigation guardian to attend an independent medical examination, does not, in and of itself, preclude the making of such an order, if it otherwise makes sense to do so in order to advance the speedy, just and inexpensive determination of the proceeding on its merits.

[18]         Whether such an order is appropriate requires the court to weigh the plaintiff’s objection against the defendant’s rationale for the request…

[20]         The plaintiff’s objection to the attendance of the litigation guardian is primarily that a conversation between the litigation guardian and the examining physician creates a form of statement that is not controlled within the process and that might well lead to conflict or confusion later, if the guardian and the Doctor do not agree as to what was said.

[21]         The defendant’s point is, primarily, that in a case where the defence is guessing as to the mental status of the plaintiff, it would be prudent to have the person who knows him best, and who is also the litigation guardian, available to answer questions about his condition, especially where it is suggested that, among the effects of the injuries suffered in the accident, is a lack of insight or appreciation on Brandon Bishop’s part of the harm that has occurred.

[22]         In Tsantilas (Litigation Guardian) v. Johnson, Cranbrook Registry #18128 (20100211) Melnick, J. made a similar order in a case involving both counsel who appear in this proceeding. In what I gather to be a case of an under-age person, the court ordered the attendance of the litigation guardian at an assessment…

[23]         I think that as long as the case continues to be conducted by Charlotte Bishop as litigation guardian, the implication that, for reasons related to his injuries Brandon Bishop is unable to conduct the litigation will remain, along with the implication that talking to him will not yield the whole story. The plaintiff’s concerns about possible confusion do not outweigh the defendant’s interest in the appointed examiners getting accurate and complete information. Accordingly, Charlotte Bishop, as litigation guardian, must attend and answer the questions posed by the examiners as they require.


Defendant Punished With Costs Award for Relying on "Advocate" Expert Witness

October 25th, 2010

Dr. Hymie Davis is a psychiatrist who has been frequently retained by ICBC to provide expert opinions as to the extent of Plaintiff’s accident related injuries.  (You can click here to access my previous posts setting out the billings of Dr. Davis and other experts often retained by ICBC).  In a judgement released last week, the BC Supreme Court harshly criticized Dr. Davis and took the unusual step of punishing the Defendant, (who was insured with ICBC), for relying on him at trial.

In last week’s case (Jayetileke v. Blake) the Plaintiff was injured in a BC motor vehicle collision.  She sued for damages.  Prior to trial ICBC made a formal settlement offer of $122,500.  The Plaintiff rejected this offer and went to trial.  She was ultimately awarded about $9,000 less than the settlement offer by the trial judge.

Normally, in these circumstances, ICBC would be entitled to their costs and possibly double costs from the time of their offer onward.  Mr. Justice Dley, however, refused to follow this usual course finding that not only should the Defendant not be awarded costs, but they should pay the Plaintiff costs.  The reason for this departure was a finding that Dr. Davis was “nothing more than an advocate thinly disguised in the cloak of an expert” and he should not have been relied on by the defence at trial.

Mr. Justice Dley provided the following damaging criticism of Dr. Davis as an expert witness and warning to lawyers who  intend to rely on experts who have a history of crossing the line into advocacy:

[35] Dr. Davis had a history before the courts where his evidence was rejected and his objectivity called into question: Grewal v. Brar et al, 2004 BCSC 1157, [2004] B.C.J. No. 1819; Gosal v. Singh, 2009 BCSC 1471, [2009] B.C.J. No. 2131; Kelly v. Sanmugathas, 2009 BCSC 958, [2009] B.C.J. No. 1413; and Smusz v. Wolfe Chevrolet, 2010 BCSC 82, [2010] B.C.J. No. 114.

[36] A witness may have a poor day in court – that does not mean the witness was dishonest or forever unreliable. However, Dr. Davis had displayed an alarming inability to appreciate his role as an expert and the accompanying privilege to provide opinion evidence.

[37] The defence was alive to his propensity to abuse the role of an expert. His reputation would have been known from the cited decisions. Plaintiff’s counsel succinctly set out the concerns about Dr. Davis in a letter dated January 29, 2010, which stated:

1.         Although he may have once been a qualified expert in psychiatry and able to give opinion evidence in court, we suggest he no longer is properly qualified to give opinion evidence. We will suggest that he is no longer aware of his duty to assist the court and in reality he is an advocate for ICBC. Additionally, we will submit that he has been so consistently discredited by the courts of this Province that he is incapable of being qualified as an expert;

2.         His report is replete with advocacy. The report is an attempt [to] neutralize any material/opinions which support the plaintiff’s claim rather than providing an objective medical opinion;

3.         His report contains many opinions and arguments that are beyond his expertise; and

4.         The information apparently gleaned from the plaintiff is inaccurate and incomplete and coloured to advance his position.

[38] In spite of the concerns that the Courts have expressed, the defence nonetheless proffered Dr. Davis as an expert in opposition to the plaintiff’s complaints of depression and anxiety. My assessment of Dr. Davis was as follows (oral reasons May 13, 2010):

[43]      Dr. Hymie Davis, a psychiatrist, examined Ms. Jayetileke on January 12, 2010 at the request of the defence. I find his evidence to be unreliable. I give it no weight for the following reasons.

[44]      Dr. Davis was an advocate. He was argumentative, defensive, non-responsive, and prone to rambling discourses that were not relevant to the questions posed in cross-examination.

[45]      Dr. Davis was asked to leave the courtroom so that counsel could argue about questions to be put to him. Dr. Davis was seen peeking into the courtroom and listening to the discussion. He was again asked to leave. In spite of these instructions given to him, Dr. Davis hovered within hearing distance and, on four occasions, stuck his head into the courtroom to hear what was occurring.

[46]      Dr. Davis conceded that without his notes, he would not be able to recall the discussion with Ms. Jayetileke. He relied on his notes to prepare his report.

[47] Dr. Davis had noted that Ms. Jayetileke awakened once or twice a week and that this was in some measure related to the accident-related symptoms. He was adamant Ms. Jayetileke had not said that she awakened once or twice a night. He said that his notes would reflect what Ms. Jayetileke had told him.

[48]      His notes referred to Ms. Jayetileke awakening once or twice but did not specify whether that was nightly or weekly. Nonetheless, Dr. Davis tried to point out other references in his notes that meant a weekly occurrence. Those references did not strengthen his evidence. They simply confirmed the unreliability of his testimony.

[49]      Dr. Smith had commented about how important it was for the history-taking to be done in a setting where the patient was comfortable and at ease with the interviewer. Dr. Davis’s demeanour would not lend itself to Ms. Jayetileke being at ease in his presence so that an effective and accurate history could have been taken. Ms. Jayetileke was under the impression that Dr. Davis did not take things seriously. I accept her view of the interview and prefer her evidence to that of Dr. Davis.

[39] For a trial to be fair, the Court must allow each party to put its best case forward. Where a party seeks to advance its position with reckless abandon seeking only the ultimate goal of victory and using questionable evidence along the way, that party risks sanctions in the form of costs penalties. Where the conduct is reprehensible and deserving of reproof and rebuke, the penalty is special costs. “Costs considerations are meant to guide counsel and litigants in the choices and strategies they pursue in litigation”: Karpodinis v. Kantas, 2006 BCCA 400, [2006] B.C.J. No. 2074 at para. 4.

[40] In this case and against the backdrop of previous judicial comment, the defence tendered Dr. Davis. He was nothing more than an advocate thinly disguised in the cloak of an expert. That is conduct deserving of rebuke and from which the Court disassociates itself.

[41] Dr. Davis attempted to inject levity to the proceedings when he was introduced to the Court – his reference to scotch can only be taken as an attempt to be humorous. However, these are serious and solemn proceedings and should be treated as such. His opening comments were unnecessary and unhelpful.

[42] Dr. Davis’ refusal to remove himself from earshot of the Court proceedings despite repeated requests was reprehensible. His conduct simply confirmed a lack of respect for Court proceedings.

[43] Under these circumstances, special costs are to be awarded against the defendant.

[44] The special costs will be the equivalent of the costs of the entire trial. The defendant will be deprived of any costs that it might otherwise have been entitled to as result of the offer to settle.

[45] The plaintiff is awarded costs as if there had been no offer to settle made. The defendant shall receive no costs.

[46] The plaintiff shall receive costs of this application.


Challenging Opposing Witnesses: The Rule in Browne v. Dunn

October 22nd, 2010

(Update March 8, 2012 – The case discussed below was set for a new trial after the Court of Appeal found the trial judge made errors applying the law of mitigation, causation and credibility.  The Court of Appeal Judgement can be foud here)

Browne v. Dunn is an English case that’s almost 120 years old.  Despite it’s vintage its a case all British Columbian’s should be familiar with when going to trial.

The rule in Browne v. Dunn states that if you intend to contradict an opposing witness on a significant matter you must put the contradictory version of events to the witness on cross examination.  Failure to do so permits the Court to prefer the witness’ version over the contradictory version.  In practice, failure to follow the rule of Browne v. Dunn can prove damaging to a case and this was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Wahl v. Sidhu) the Plaintiff was involved in a significant collision in Surrey, BC in 2006.  The Plaintiff sustained various injuries.  At trial he sought over $1.1 million dollars.  Much of his claim was dismissed but damages of $165,000 were assessed to compensate him for physical and psychological injuries from the crash.

During the course of the trial the Defence lawyer argued that the Plaintiff was not credible and was exaggerating his claim.   The lawyer relied on evidence from various treating medical practitioners who had negative opinions about the Plaintiff’s efforts and argued that “the plaintiff is intentionally faking symptoms“.   The Defence lawyer did not, however, cross examine the Plaintiff with respect to these witnesses allegations.  Mr. Justice Chamberlist relied on the rule in Browne v. Dunn and refused to place any weight on these challenges to the Plaintiff’s credibility.  Specifically the Court provided the following useful comments:

[213] I wish to comment on what occurred and what did not occur with respect to the evidence of Mr. Wahl at trial.  My notes of his evidence, particularly his evidence given under cross-examination, indicate that negative comments made by the various treators and Mary Richardson and Gerard Kerr were not put to him under cross-examination so that he would have an ability to deal with that evidence.  It is my view that the witness must be confronted with these opinions before the opinion can be properly dealt with (Browne v. Dunn, (1893) 6 R. 67 (H.L.)).  This is especially required in a case such as this where the defence submits that the plaintiff, in this case, is not motivated to get better and that the credibility of the plaintiff is at issue.

[217] The defence, in this case, called Dr. Bishop as a witness. …As indicated earlier Dr. Bishop was originally retained by the plaintiff but did not call Dr. Bishop at trial.  The defence made a point of filing Dr. Bishop’s reports and defence called her evidence as part of its case.  In the defence written submissions, the defence maintains that “her evidence makes it clear that she is of the opinion that the plaintiff is intentionally faking symptoms”….

[219]     It is important to note the first lines of the evaluation of effort where Dr. Bishop said, and I repeat:

. . . Although effort testing of itself cannot determine motivation as submaximal effort may be multifactorial in origin (e.g. fear of pain, anxiety with regard to performance, perception of dysfunction, need to demonstrate distress, etc) . . .

That finding cannot be relied upon, in my opinion, by the defence when the particulars of those conclusions were not put to the plaintiff when he was on the stand….


New Rules of Court Update: Discontinued Lawsuits and Third Party Costs

October 21st, 2010

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, interpreting and applying Rule 9-8(5) for what I believe is the first time.  (It’s worth pointing out, however, that this rule reads almost identically to the former Rule 36(5)).  This rule deals with the entitlement of a Third Party to costs when a Plaintiff discontinues a lawsuit.

In today’s case (Patterson v. Williams) the Plaintiff sued two Defendants for personal injuries sustained when a dog knocked her over.  The Defendants denied fault and issued Third Party Proceedings against another dog walker seeking contribution and indemnity.

Ultimately the Plaintiff settled the claim, signed a release in favour of the Defendants and discontinued the lawsuit.  The Third Party then brought a motion asking that the Defendants pay the Third Party’s costs.  The Third Party relied on Rule 9-8(5) which reads as follows:

(5)  If a plaintiff discontinues the whole or any part of an action in which a person has been joined as a third party, the third party, if the discontinuance disposes of the claim against the third party, is entitled to costs and may apply to the court for a direction as to who should pay them.

Mr. Justice Sigurdson dismissed the motion finding that a discontinued lawsuit does not automatically dispose of Defendant claims against a Third Party.  The Court provided the following reasons:

[11]         The third party says that the notice of discontinuance disposes of the third party claim, as it was for contribution and indemnity only and did not include an independent claim. This was so, in the third party’s submission, because the specific wording of the third party notice made the third party claim conditional both on the plaintiff not being contributorily negligent and on the defendant being found liable. According to the third party, these conditions cannot now be satisfied because of the discontinuance.  Mr. Nossal also argues that there is no ongoing claim against the third party because the terms of the Release are on so-called “B.C. Ferry Agreement terms” (British Columbia Ferry Corp. et. al. v. T&N plc. et .al. (1993), 86 B.C.L.R. (2d) 353 (S.C.); (1995), 16 B.C.L.R. (3d) 115 (C.A.)) that prevent recovery from a third party.

[12]         I think that this application for costs must fail.  While the Release may limit the liability of the defendants and prevent successful third party proceedings against them, the notice of discontinuance itself does not prevent the defendants from continuing third party proceedings against Ms. Parker.

[13]         I do not think it can be said that the filing of the notice of discontinuance by the plaintiff disposes of the claim against the third party by the defendants.

[14]         The claim for contribution is a substantive right that continues to exist notwithstanding a settlement: see A.R. (Al) Smith Ltd. v. Turner, [1984] B.C.J. No. 3107, [1985] 2 W.W.R. 424 (B.C. Co. Ct.), and Canada v. Foundation Co. of Canada, [1980] 1 S.C.R. 695.

[15]         Moreover, I do not think that the precise terms of the third party notice can be determinative of this application, as the defendants are at liberty to apply to amend the terms of the third party notice.

[16]         Even if the terms of the Release do prevent the defendant from continuing third party proceedings against the third party, which I question, that is a matter of the interpretation of the Release, not something that flows from the filing by the plaintiff of the notice of discontinuance itself.

[17]         Accordingly, the application by the third party for costs is dismissed, with costs.


BC Injury Claims, Pre-Trial Discovery and "Mental Incompetence"

October 20th, 2010

When suing for damages as a result of personal injuries the BC Supreme Court Rules generally permit Defendants to compel Plaintiffs to participate in pre-trial examinations for discovery.  There are a few exceptions to this and one of these relates to mentally incompetent Plaintiffs.  If a Plaintiff is mentally incompetent they can only be examined with permission from the Court.  Reasons for judgement were released earlier this week by the BC Supreme Court, Vancouver Registry, dealing with this area of law.

In this week’s case (DeMerchant v. Chow) the Plaintiff sustained a serious brain injury during a fall from a ladder in 2007.  The Plaintiff started a lawsuit in the BC Supreme Court through a litigation guardian.  During the course of the lawsuit the Plaintiff refused to participate in a discovery.  The Defendant brought a motion seeking an order that he be forced to participate.  The Plaintiff opposed this and relied on medical evidence which opined that the Plaintiff “could not reliably answer questions put to him” and that he “does not have the capacity to give testimony in court“.

Ultimately Master Taylor dismissed the motion and refused to grant the defendant permission to examine the Plaintiff.  This is the first case I’m aware of applying the new BC Supreme Court Rule 7-2(9) which deals with discovery of mentally incompetent parties.  Master Taylor provided the following reasons in dismissing the application:

[2]             The application is made pursuant to Rule 7-2(9) of the new Rules which was formerly Rule 27(11) of the old Rules.  The wording of both rules is similar, but the new Rule has changed the wording somewhat.  The new Rule provides:

7-2(9) If a party to be examined for discovery is a mentally incompetent person, his or her litigation guardian and his or her committee may be examined for discovery, but the mentally incompetent person must not be examined without leave of the court.

[34]         The question to be determined, therefore, is whether the evidence before me is sufficient to find that court approval should be granted to allow the plaintiff to be examined for discovery.

[35]         In Penn v. Secord (1979), 16 B.C.L.R. 48, [1980] 1 W.W.R. 464, 106 D.L.R.(3d) 9 Ruttan, J. said the onus for showing that a party is competent to be examined rests on the party seeking his examination. In the case at bar, the onus rests on the defendants.

[36]         The Rule in question uses the term, “a mentally incompetent person”.

[37]         It has been assumed up to now that Mr. DeMerchant is a mentally incompetent person because he has a trustee and a litigation guardian.  As well, the very nature of the application assumes the plaintiff is a mentally incompetent person since the application seeks leave of the court to examine him.

[38]         According to section 29 of the Interpretation Act, a “mentally incompetent person” is a “person with a mental disorder as defined in section 1 of the Mental Health Act”.

[39]         Reference to the Mental Health Act reveals the definition of a “person with a mental disorder” as “a person who has a disorder of the mind that requires treatment and seriously impairs the person’s ability (a) to react appropriately to the person’s environment, or (b) to associate with others”…

[45]         In the case at bar, there is medical evidence which conflicts, however I am satisfied that Drs. Bogod and  Lu have provided sufficient medical evidence  to suggest that the plaintiff does confabulate and would be unreliable as a witness.

[46]         I am also satisfied that the evidence of Drs. Bogod and Lu establish that the plaintiff meets both tests set out in the definition of a person with a mental disorder.

[47]         Accordingly, I determine that the applicants have not met the onus imposed upon them in seeking an order that the defendants be granted leave to examine the plaintiff at discovery.  It should also go without saying that I do not find the plaintiff to be competent to give evidence on his own behalf in these proceedings.

[48]           Consequently, I dismiss the defendants’ applications with costs to the plaintiff in any event of the cause.