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

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Archive for June, 2012

Supreme Court of Canada Clarifies Law of Causation in Injury Claims

June 29th, 2012

In 2010 the BC Court of Appeal released reasons for judgement seeking to clarify the law of causation in negligence lawsuits.  The Supreme Court of Canada weighed in on this topic in reasons for judgement released today.

In today’s case (Clements (Litigation Guardian of) v. Clements) the Defendant was “driving his motorcycle in wet weather, with his wife riding behind on the passenger seat.  The bike was about 100 pounds overloaded.  Unbeknownst to (the driver), a nail had punctured the rear tire.  Though in a 100 km/h zone, (the driver) accelerated to at least 120 km/h in order to pass a car; the nail fell out, the rear tire deflated, and the bike began to wobble.  (the driver) was unable to bring the bike under control and it crashed“.  The crash caused a severe brain injury to the passenger.

The BC Court of Appeal dismissed the claim finding that the Plaintiff could not prove the Driver’s speed and overloading of the motorcycle caused the crash.  The Supreme Court of Canada, in a 7:2 split, found that errors were made at both the trial and appellate level and ordered a new trial.  In doing so the majority provided the following reasons on the “but for” test of causation in negligence claims:

[6] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault.  If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered.  This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm:  E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[8] The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ? in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  SeeWilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.  See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458.  See also the discussion on this issue by the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

The Court also went on to address the “exceptional” cases where the “material contribution to risk ” doctrine can be used finding its use is appropriate only where:

(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and

(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

June 29th, 2012

Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury.  In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.

In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident.  In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert.  The expert was vigorously cross examined.  In closing arguments to the Jury the expert was compared to Carnac the Magnificent.  In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:

[24]  The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere.  The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate.  The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule.  Counsel for the Plaintiff accepted this and did not resile from it.  If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…

[26]  The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate.  The defendant in argument described the Karnac figure as a “wizard buffoon”.  Counsel for the Plaintiff agreed.  He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.

[27]  Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it.  I prevented counsel from proceeding.  I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions.  I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert.  That attack may well use some “drama and pathos”:  Cahoon at para. 18.  I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous.  It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness.  In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.

A mistrial was eventually declared.  The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue.  Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.

Defendant's Insured Status Shields Plaintiff From Hefty Costs Consequences

June 28th, 2012

As previously discussed, when a Plaintiff fails to beat a Defendant’s formal settlement offer at trial they can be exposed to significant costs consequences.  One factor that Courts can consider when using their discretion is the financial status of the parties including whether the Defendant is insured.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, using this factor in shielding a Plaintiff from potentially hefty costs consequences.

In this week’s case (Cunningham v. Bloomfield) the Plaintiff was injured in a collision.  She sued for damages and the claim proceeded to jury trial.  Prior to trial the Defendant provided a formal settlement offer of $12,500.  The jury awarded $5,000 in total damages triggering a Defence application for payment of post offer costs.  Mr. Justice Crawford rejected the application finding stripping the Plaintiff of all her costs was a more appropriate result.  In addressing the financial position of the parties the Court provided the following reasons:

[15] The award of the jury was low. But as noted in Cairns at para. 50, the unpredictability of a jury is a relevant consideration.

[16] It is said that the plaintiff is not lacking in income and no evidence as to her assets have been put forward to properly consider her position. But as discussed in several of the cases, the defendant through their insurer is able to cover their costs. The plaintiff on the other hand has a dependent husband and a reduced income, though that by choice.

[17] The other factor I consider appropriate is of course my assessment of the plaintiff’s case upon the issuing of the writ and I have found counsel’s assessment was over-optimistic and therefore the plaintiff is already deprived of costs.

[18] In the circumstances I will allow the plaintiff her disbursements throughout, but I will make no order as to costs payable to either side.

Province Not Liable For Prisoner Injured by Axe

June 28th, 2012

Reasons for judgement were release this week by the BC Supreme Court, Nanaimo Registry, dismissing a lawsuit against the Province of BC for injuries sustained by an inmate struck with an axe, allegedly by another inmate.

In this week’s case (Foulds v. British Columbia) the Plaintiff was incarcerated in the Nanaimo Regional Correctional Centre.  In the course of his incarceration he was placed on a “farm gang” along with other inmates.  The Plaintiff and another inmate were tasked with clearing brush and stacking wood.  They were provided with axes.   The Plaintiff and the other inmate decided to chop down a tree (a job that he was not tasked with).  During this time the Plaintiff “was struck on his left knee with an axe“.  There was some inconsistency about whether the Plaintiff struck himself or was struck by the other inmate.

Mr. Justice Affleck held that even if the other inmate struck the Plaintiff the Province should not be liable.  In dismissing the claim the Court provided the following reasons:

[32] The standard of care imposed on the Province in managing the NRCC farm inmates cannot be one of continuous supervision of every inmate at all times. I have no basis to conclude that the system of supervision in place at the farm on May 14, 1997 was deficient and failed to meet the appropriate standard of care. Nor can I conclude that Mr. Matthews’ decision to permit the plaintiff and Cameron the use of an axe to clear brush and to split wood fell below the standard of care. Both the plaintiff and Cameron had been assigned various tasks by Mr. Gooding and Mr. Matthews had no reason to change those assignments. I do not fault Mr. Matthews for permitting the plaintiff and Cameron to take an axe nor do I fault Mr. Matthews for not escorting the plaintiff and Cameron to the worksite in the wooded area.

[33] In my opinion, the absence of direct supervision of the plaintiff and Cameron was not the cause of the injury. The injury was caused or at least occasioned by the decision of the plaintiff and Cameron to use the axe to chop a tree, a task to which they had not been assigned.

[34] There appears to have been several reasons for the NRCC to have a farm. One important reason was for those inmates who were permitted to work on the farm to enjoy a level of independence not permitted to other inmates. That independence would be meaningless if there was continuous supervision. Nevertheless if there was not constant supervision the risk of injury associated with the use of tools of various kinds was increased. That risk had to be tolerated if independence to any degree was to be achieved. The standard of care imposed on the Province must be viewed in that light. I cannot find the Province was negligent.

[35] The action is dismissed…

BC Civil Proceedings Must Be Conducted in English Only

June 27th, 2012

The BC Court of Appeal delivered reasons for judgement today (Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia) addressing whether “a Supreme Court judge presiding in British Columbia over a civil proceeding has the discretion to permit documents in the French language to be filed as exhibits to an affidavit without accompanying English translations“.

The Court of Appeal held that this is not permitted and that all evidence must be in English or translated into English.   After canvassing a fairly lengthy statutory history the Court concluded as follows:

[64] Having found that the requirement for civil proceedings in British Columbia to be conducted in English is prescribed by statute, I conclude that there is no discretion for a judge of the Supreme Court of British Columbia presiding over civil proceedings to admit documentary evidence in any other language for the truth of its contents without an accompanying English translation

Document Disclosure Photocopy Expenses Ordered at $0.30 Per Page

June 27th, 2012

Rules 7-1(16) and (17) deal with producing relevant documents to opposing litigants and costs associated with doing so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the rate of reasonable photocopy charges.

In last week’s case (Perone v. Baron) the Plaintiff was involved in a motor vehicle collision.  In the course of his lawsuit ICBC requested copies of relevant documents agreeing to pay $.30 per page for photocopy expenses.  The Plaintiff agreed to produce the documents but insisted that $.35 should be paid per page.  The difference was ultimately resolved via Court Application with Master McDiarmid providing the following reasons:

33] I accept what Esson J.A. wrote, namely that photocopying charges under Rule 7(1)(16) are more closely akin to what would be allowed in a solicitor-client costs review. I also note, though, that at the time Giulianiwas decided, just over 14 years ago, the registrar’s rate was only 60% of what it is now.

[34] After reviewing the facts before me and the law presented to me, I consider that the rate of 30¢ per page is appropriate. I order the production of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of the application are granted.

BC Court of Appeal Confirms Non-Disclosure of HIV Status Can Vitiate Consent to Sexual Contact

June 26th, 2012

The BC Court of Appeal released reasons for judgement today (R v. Nduwayo) confirming that failure to disclose HIV positive status can vitiate consent to sexual contact thereby making an otherwise consensual sexual encounter a criminal assault (or a matter that can give rise to a civil claim for damages).   It is worth noting that the Supreme Court of Canada is expected to deliver reasons for judgements in the fall addressing this same topic in other litigation.

The BC Court of Appeal provided the following summary of the legal framework:

Legal Framework for Consent Obtained by Fraud in Sexual Offences

[47] The question of when fraud will vitiate consent in the context of sexual acts was considered and determined in R. v. Cuerrier, [1998] 2 S.C.R. 371. In three concurring judgments, the Court agreed, on the facts in that case, that deceit as to HIV-positive status that induces consent constitutes fraud in sexual offences.

[48] Mr. Cuerrier, who knew he was HIV-positive, was charged with aggravated assault in relation to two women with whom he had sexual intercourse without disclosing his HIV status. Both said they would not have consented to sexual intercourse with him had they known his condition. Neither contracted HIV from Mr. Cuerrier. He was acquitted at trial, and the acquittals were upheld by the Court of Appeal.

[49] The first element in s. 273(1), whether Cuerrier’s acts “endangered the life of the complainant”, was found to be satisfied by all three levels of court. In the majority reasons, Cory J. said this:

[95]      … There can be no doubt the respondent endangered the lives of the complainants by exposing them to the risk of HIV infection through unprotected sexual intercourse. The potentially lethal consequences of infection permit no other conclusion. Further, it is not necessary to establish that the complainants were in fact infected with the virus. There is no prerequisite that any harm must actually have resulted. This first requirement of s. 268(1) [now 273(1)] is satisfied by the significant risk to the lives of the complainants occasioned by the act of unprotected intercourse.

[50] The Court then examined the question of consent and fraud. Major changes to the legislation in relation to sexual offences occurred in 1983. Mr. Justice Cory concluded that these amendments encompassed changes to the definition of consent obtained by fraud.  He found that the definition was no longer limited by requiring that the fraud had to relate to the nature and quality of the act. He concluded, at para. 108, that the law in relation to economic fraud could, with appropriate modifications, be applied.

[51] After examining the leading cases in which criminal fraud was defined (R. v. Olan, [1978] 2 S.C.R. 1175; R. v. Théroux, [1993] 2 S.C.R. 5; R. v. Zlatic, [1993] 2 S.C.R. 29), Cory J. concluded, at para. 116, that “the essential elements of fraud are dishonesty, which can include non-disclosure of important facts, and deprivation or risk of deprivation”.

[52] Mr. Justice Cory then considered the type of fraud or fraudulent conduct that would vitiate consent in cases of sexual assault. He examined previous cases in which non-disclosure of a sexually transmitted disease either amounted to fraud (R. v. Bennett (1866), 4 F. & F. 1105, 176 E.R. 925; R. v. Sinclair (1867), 13 Cox C.C. 28; State v. Lankford, 102 A. 63 (Del. Ct. Gen. Sess. 1917)) or did not (R. v. Clarence (1888), 22 Q.B.D. 23). He considered the “deadly consequences” that non-disclosure of the risk of HIV infection can have and concluded at para. 124:

[124]    In my view, it should now be taken that for the accused to conceal or fail to disclose that he is HIV-positive can constitute fraud which may vitiate consent to sexual intercourse.

[53] In order to establish that consent was obtained by fraud, the Crown first has to establish dishonesty. This is established on an objective standard. Dishonesty may be established either by an accused’s deliberate act of deceit in relation to his or her HIV status or by passive non-disclosure of the status. The Court concluded at para. 127, on the evidence before it, that true consent could not be obtained without the disclosure of HIV status. The second aspect of fraud vitiating consent is deprivation, which can be shown by actual harm, which is more than trivial, (Cuerrier at para. 128) or the risk of significant serious bodily harm.

[54] The mens rea for fraud is that the accused must knowingly be dishonest and aware that deprivation could result from that dishonesty (Cuerrier at para. 114).

[55] The Crown must also prove that the complainant would not have consented had he or she known the accused was HIV positive (Cuerrier at para. 130).

Lawyer's Fabrication of Evidence Conviction Upheld by BC Court of Appeal

June 26th, 2012

Reasons for judgement were released today by the BC Court of Appeal upholding the convictions against a former BC personal injury lawyer relating to “fabrication of evidence“.

Today’s case (R v. Zoraik) involved a personal injury lawyer who lost a claim on behalf of a client before a judge and jury.  Following the jury decision dismissing the claim an envelope was found at the local courthouse stating that one of the jurors was “offered money for her vote in court“.  Ultimately the accusation made in this letter was found to be baseless and its creation was attributed to the Plaintiff’s lawyer.

The lawyer was criminally convicted of public mischief, obstruction of justice and fabrication of evidence.  The BC Court of Appeal upheld the convictions concluding the verdict was “firmly grounded in compelling evidence, which, when accepted by the judge, formed a solid evidentiary basis for the convictions on the three counts“.  The Court of Appeals reasons for judgement can be found here.

$100,000 Non-Pecuniary Assessment for Shoulder and Knee Injury

June 26th, 2012

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a knee and shoulder injury sustained in two motor vehicle collisions.

In last week’s case (Wong v. Hemmings) the 36 year old Plaintiff was injured in two collisions, the first in 2006 and the second in 2008.  These caused a fairly serious shoulder injury which, despite extensive therapy, did not fully recover and was expected to pose ongoing problems in the Plaintiff’s vocation as a server into the future.  In addition to this, the Plaintiff suffered a knee injury which also lingered on.  In assessing non-pecuniary damages at $100,000 Mr. Justice Fitch provided the following reasons:

[111] In assessing non-pecuniary damages, I have had regard to the following considerations. The plaintiff is a young woman. She has endured 5 1/2 years of significant shoulder and, to a lesser extent, knee pain as a consequence of the two accidents.

[112] She has undergone two injections of anesthetic and corticosteroids into her shoulder and has tried a number of different types of therapeutic interventions to obtain pain relief. Her pain is undoubtedly exacerbated by the weight bearing demands of her position. Despite this, the plaintiff has continued to work as a server because that position affords her the best opportunity to provide for herself and for her daughter.

[113] In October, 2010 plaintiff underwent arthroscopic subacromial decompression surgery on her left shoulder in addition to an arthroscopic procedure designed to reduce pain associated with her biceps tendon. That procedure was conducted as a result of Dr. Regan’s fear that if no intervention was tried, the plaintiff was going to be left with a permanent partial disability that could limit her ability to continue in the workforce given the demands of her job. Dr. Regan was frank in his pre-surgical assessment that if she did not benefit from these procedures, she would likely suffer long-term consequences, including permanence of her pain pattern affecting her shoulder which would limit her from doing repetitive above shoulder height activities or repetitive lifting activities. While the subacromial bursal excision provided the plaintiff with some relief, she continues to experience pain over the biceps tendon which is likely aggravated by her work duties. Dr. Regan concluded that while her left shoulder was improved from its pre-operative status, it would not improve in the future. One further surgical procedure could be performed on the plaintiff’s shoulder but this would require her to be off work for between three and four months. Dr. Regan testified that he would only undertake this procedure if the plaintiff continued to suffer pain associated with the activities of daily living despite quitting her job. Although the arthroscopic surgery was a partial success, the fears expressed by Dr. Regan prior to the surgery have now largely come to pass.

[114] With respect to her left knee, Dr. Regan concluded that the plaintiff was continuing to suffer pain associated with an injury caused by the first accident to her peroneal nerve. He is of the opinion that a cortisone injection is unlikely to help the situation at this time. If the plaintiff’s symptoms worsen over time, a further surgical procedure with a six to eight week recovery period is the only treatment option available to her.

[115] With respect to the plaintiff’s myofascial pain, Dr. Regan expressed the view that while the condition will likely settle, the plaintiff’s recovery will be prolonged and she may be left with chronic pain in the left side of her neck and the trapezius, levitator scapula and paraspinal muscles in her neck and back.

[116] Dr. Anton similarly opines that while the plaintiff had a reasonably good outcome from her shoulder impingement surgery, she is not pain free and has essentially exhausted surgical and non-surgical options for her left shoulder. He concludes that the prognosis for further improvement of her left shoulder is poor as long as she continues in her current work. In fact, he concludes that so long as the plaintiff continues in her current position, she will experience shoulder pain. Even if the plaintiff finds suitable alternative employment, Dr. Anton is of the view that she will probably be at increased risk for episodes of pain in her left shoulder indefinitely. With respect to her left knee, Dr. Anton is of the view that the plaintiff continues to have irritation of the peroneal nerve and that the prognosis for improvement is uncertain.

[117] In short, the injuries suffered by the plaintiff in the two accidents are serious, have caused long-term and ongoing pain which may, insofar as the myofascial pain is concerned, be chronic in nature. Those injuries have not been resolved by various types of surgical and non-surgical treatment. The plaintiff will continue to suffer pain in the future which will be aggravated by the repetitive, weight bearing demands of her job as a server.

[118] Prior to the accidents, the plaintiff was a vigorous, energetic and physically active person who participated in a broad range of sporting activities. Constant pain and sleep deprivation have made her less energetic and much less inclined to participate in the kinds of sporting activities she enjoyed before the accidents. The plaintiff’s continuing symptoms have significantly affected her lifestyle. For an individual who uses physical activity to promote good mental health, the loss to the plaintiff in this regard has been significant.

[119] Perhaps even more significantly, the accidents and the symptoms that the plaintiff continues to experience have caused her to become more socially withdrawn. She is moodier and less patient with others, including with her daughter, Brooke. I find that the accidents have resulted in a significant loss of enjoyment of life and some impairment of the plaintiff’s social relationships.

[120] The plaintiff’s injuries have also taken an emotional toll. The plaintiff has carried the burden of supporting herself and her daughter as a single mother. She continues to work through pain because she feels she has no choice to do otherwise. She faces the stress of an uncertain medical and financial future with the possibility of additional surgical interventions in relation to her left shoulder and left knee.

[121] The accidents have significantly impacted the plaintiff in physical, emotional and social ways. They are likely to have that impact into the future and will certainly persist as long as the plaintiff continues to work as a server.

[122] In all the circumstances, I assess non-pecuniary damages at $100,000.00.

An Example of the Hefty Price of "Loser Pays"

June 26th, 2012

As previously discussed, the BC Supreme Court operates on a “loser pays” system typically requiring a losing litigant to pay the winner’s costs and disbursements.  This reality goes a long way towards discouraging frivolous lawsuits and encouraging pre-trial settlement.  The Loser Pays system can create hefty consequences as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.

In this week’s case (Pearlman v. Critchley) the Plaintiff was involved in litigation with a “lengthy and tortuous history“.  His various claims had been “in one form or another, dismissed at the trial level” and the Court went further declaring that the Plaintiff was a vexatious litigant.

The Plaintiff was ordered to pay special costs after having his claims dismissed.  Today’s case dealt with assessing these and ultimately Registrar Sainty ordered that the Plaintiff pay costs of $42,977 providing an expensive lesson of BC’s loser pays system in action.