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 March, 2013

Clinical Records Admitted Without Authentication? – No Harm No Foul Says BC Court of Appeal

March 19th, 2013

Reasons for judgement were released last week by the BC Court of Appeal addressing, among other topics, whether a new trial should be ordered after clinical records were introduced to a jury without proper authentication.

In last week’s case (Desharnais v. Parkhurst and Romanowski) the Plaintiff was injured in two motor vehicle collisions.  He sought substantial damages as a result but a jury rejected much of his claim awarding $31,000 in damages.  The Plaintiff appealed arguing multiple errors were made at the trial level with the most significant, presumably  being the introduction of various clinical records without proper authentication.  The BC Court of Appeal held that while this was a clear error no harm was done and dismissed the appeal.   The Court provided the following reasons:

[93]         Accordingly, the records could be admitted for the truth of the fact that the statements were made, if the records were kept as part of the counsellor’s ordinary course of business, and were recorded within a reasonable time of the conversation with the plaintiff.  Similar, though not identical, considerations would be made under Ares.

[94]         There was no clear evidence of these conditions having been met.  Normally, the preconditions would be dispensed with by using a document agreement or securing admissions through a Notice to Admit.  I have not been able to find anything in the record to suggest that formal proof was dispensed with.  Rather, in this case the plaintiff objected to their admission.

[95]         In those circumstances, it seems to me that counsel seeking to admit the records as business records under common law or statute would have to tender proof of the preconditions for admissibility:  Cunningham v. Slubowski, 2003 BCSC 1854.  This was not done here. 

[96]         Accordingly, I agree with the plaintiff that the trial judge erred in concluding that the records were admissible without first concluding that there was proof of the preconditions under common law or statute.  Plaintiff’s counsel disputed that the records qualified as business records.  Even if there were little or no substance to his position, the effect of his objection was to require the defence to lead the evidence to comply with the pre-conditions for admissibility.

[97]         Having reviewed the appeal record, however, I do not see this error as sufficient to warrant intervention from this Court.  Had the records not been admitted, the information contained in them would have nonetheless been placed before the jury, as the content of the records was summarized in the report of the plaintiff’s expert, Dr. Rami Nader.  Dr. Nader’s summary of the records included that the plaintiff complained about stress stemming from his relationship with two women and that he suffered a back injury following the accident in his driveway.  Plaintiff’s counsel had the report admitted and sought no limiting instruction on the use of the report.

[98]         Further, the trial judge’s instruction that the records were an example of a prior inconsistent statement was one of several prior inconsistent statements made by the plaintiff.  The trial judge also pointed out inconsistent statements made under oath.  The plaintiff’s own counsel referred to the plaintiff as “a poor historian” in his closing submissions.  On the whole, it seems unlikely that the assessment of the plaintiff’s credibility was significantly influenced by the statements in the records.

[99]         The jury was also unlikely, given the amount of medical evidence, to place much weight on the records suggestion that the plaintiff was symptomatic before the first and second accident.  Further, this information was before the jury by virtue of the plaintiff’s expert’s report.

[100]     Based on the above, I do not see this error as warranting intervention from this Court.

$130,000 Non-Pecuniary Assessment For Complex Pelvic and Knee Fractures

March 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing damages for a complex pelvic and knee fracture.

In this week’s case (Farand v. Seidel) the Plaintiff was struck by the Defendant’s vehicle while she was crossing a street in a marked pedestrian crosswalk.  Although the Defendant disputed liability he was found fully liable for the collision.

The Plaintiff suffered a tibial plateau fracture along with complicated pelvic injuries.  The Plaintiff was left with long term complications which affected her ability to work full time hours on a consistent basis.  In assessing non-pecuniary damages at $130,000 Mr. Justice Savage provided the following reasons:

[46]         Ms. Farand was struck by Mr. Seidel’s pickup truck and landed on the road surface in front of Mr. Seidel’s truck. She was not run over by the truck. Ms. Kriez was able to estimate where Ms. Farand lay on the pavement. She noted that Ms. Farand’s position on the pavement showed an unnatural posture. Passersby called 9-11.

[47]         Ms. Farand was taken to the hospital by ambulance. Imaging at the hospital showed a tibial plateau fracture and a lateral compression pelvis fracture, inferior and superior rami fractures, and an undisplaced sacral fracture. Open reduction and internal fixation of the right tibial plateau fracture was done on August 9, 2009. Imaging shows a metal plate fixed with six metal screws. The pelvis fractures were treated conservatively.

[48]         Ms. Farand was hospitalized for 12 days. She was released from hospital, moving with the aid of a wheel chair. She was also provided with crutches. By December 2009 she used crutches without the wheel chair. She was anxious to return to work and worked a few partial days in November and December 2009, although she was able to do this work from home. She was put on a gradual return to work program. Her timesheets indicate the hours she worked.

[49]         Ms. Farand suffered and continues to suffer from ongoing neck and back pain. She was diagnosed by Dr. Esmail with musculoligamentous injuries to her cervical spine, with likely injuries to the zygaphophyseal joints as well as injuries to the facets of the mid-thoracic spine. Dr. Esmail diagnosed her with soft tissue injuries of the lumbar spine and injury to the sacroiliac joints of the lumbar spine. These injuries result in chronic pain, which interferes with activities of daily living and is aggravated by her favouring her right leg.

[50]         Ms. Farand has undergone various treatments, including physiotherapy and massage. She has not regained quadriceps bulk, particularly in the right leg. Dr. Esmail opines that she is at greater risk for developing osteoarthritis in the right knee and will likely need knee replacement surgery in 15-20 years. He is uncertain whether she has meniscal tear or detached meniscus, which cannot be identified by doing an MRI but could be diagnosed with arthroscopic surgery. If she has these problems with her meniscus, then those time frames may be accelerated…

[76]         In my opinion the appropriate award for non-pecuniary damages in this case is $130,000, which award I so make.


Homeowners Liable For Teenage Guest Electocuting Himself By Raising Pole To a Powerline

March 15th, 2013

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, dealing with liability following an unfortunate incident of self-electrocution.

In this week’s case (Bendak v. Bohnet) the 13 year old plaintiff was visiting his friend’s home.  Before going out to play his friend’s mom directed that her son finish a chore dealing with the property’s irrigation pipes.  The Plaintiff tagged along helping his friend to complete the chores.  While attending to the pipes they realized  a rodent may have been caught in one of the pipes.  The boys stood the pipe up which measured some 40 feet in length.  It came into contact with overhead powerlines badly electrocuting the Plaintiff.

The Plaintiff sued the home owners arguing they were liable for the incident pursuant to BC’s Occupier’s Liability Act.  Madam Justice Schultes agreed and in finding the homeowners negligent provided the following reasons:

[59]         What I consider to be the critical factors, however, are the particular circumstances under which Tanner was injured, and not the general practice as applicable to irrigation under power lines in this area.

[60]         Firstly, one must consider the physical setting. Accepting that the usual and proper manner of moving irrigation pipes is horizontally carrying them, and that there is never any reason to stand it vertically during that process, this was still an area fraught with potential peril. Metal pipes of a sufficient length to touch the high voltage line if stood up vertically were strewn about. All that prevented a potentially fatal contact between them were whatever best practices may have been inculcated in Connor in his instructions about moving irrigation pipes, which did not include specific training about this risk. In other words, this was a potentially perilous zone, awaiting only the easily achievable, if completely unnecessary, action of standing up an irrigation pipe to be taken for serious harm to occur.

[61]         Second, one must consider the characteristics of those who were allowed to go into this dangerous physical setting. Although they had both turned 13, these were Grade 7 boys — children by any reasonable description — whose propensity for using objects in every way other than that which they are intended is an intrinsic attribute of childhood. I do not think it is actually necessary to go so far as to find the Bohnets ought to have foreseen that the boys would gopher hunt by tipping up a pipe, although that is certainly within the reasonable range of activities that they might get up to. It is, rather, that with a highly dangerous power source 40 feet or less above them, with a means of making contact ready at hand, the Bohnets depended only on Connor’s remaining within the four corners of the chore itself to keep him and Tanner safe, despite the self?evident immaturity and unpredictability that are attributes of children of that age.

[62]         I think that represents a real risk, one that a reasonable person would regard as anything but farfetched. It is an example of a possibility of serious harm, one that would occur to the mind of a reasonable person. Its relative frequency as an accident in commercial agriculture does not speak to the dangers posed by the activity being carried out by children. The specialized danger to children inherent in this situation means lack of attention by Mr. Bohnet to the Workers’ Compensation poster, directed to him in his capacity as an employer, is not particularly significant either.

[63]         My conclusion is that unsupervised children left in possession of objects capable of inflicting serious harm on themselves if they engage in quite typical childish behaviour should be seen by any reasonable person as a significant risk of harm. Simply, these boys were put in a situation in which their safety depended entirely on Connor doing only that which he had been entrusted and told to do, and not behaving as children.

$50,000 Non-Pecuniary Assessment for Chronic AC Joint Injury

March 14th, 2013

Adding to this site’s archived posts addressing BC non-pecuniary assessments for shoulder injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic AC joint injury.

In last week’s case (Westfield v. Lindstrom) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from soft tissue injuries which largely recovered her AC joint injury remained problematic at the time of trial that were expected to continue indefinitely.   In assessing non-pecuniary damages at $50,000 Mr. Justice Abrioux provided the following reasons:

[58]         I make the following findings of fact based on my consideration of the evidence, both lay and expert, as a whole:

a.         prior to the Accident the plaintiff had occasional difficulties with her low back.  In addition, she had degeneration in her right shoulder area.

b.         the plaintiff also suffered from asthma and had respiratory problems, which affected her daily living activities to various degrees from time to time.  These difficulties made her more susceptible to developing a more serious condition in the future.  That in fact occurred after the Accident.  The development of the respiratory condition to its current stage which the plaintiff concedes is “serious and disabling,” plays an important role in her day-to-day functioning and ability to enjoy the amenities of life.

c.        the plaintiff sustained various soft tissue injuries in the Accident.  It is also likely she sustained an injury to the AC joint in the right shoulder.  Although the plaintiff has recovered from certain of these injuries she has ongoing pain and discomfort to her right shoulder, with associated discomfort in her neck, which is likely permanent.

d.         the Accident injuries affected the plaintiff’s “original position”, that is, the state of her health and its effects on her functioning prior to the Accident.  This original position included a right shoulder with degenerative changes.

e.         although the plaintiff has indicated she would be prepared to undergo an operation to her right shoulder if that were recommended to her, she has not established that recommendation is likely to occur.  There is evidence the operation could pose a significant risk to her life.  Quite understandably, the plaintiff testified she would not undergo the surgery if there were in fact such a risk to her.  There was no evidence from an anesthesiologist to the effect the plaintiff’s respiratory condition would not in fact result in a significant risk to her life were she to undergo an operation which involved a general anesthetic.  This is what would likely occur in this case.

f.          while the plaintiff does have some ongoing pain and restriction to her shoulder which is likely to be permanent, the effect of the ongoing Accident injuries plays a considerably less negative role in her day-to-day functioning than do the ongoing effects of her serious respiratory condition.

g.         the plaintiff has downplayed to some extent the respective contributions to her current state of health caused by the Accident injuries on the one hand and the respiratory condition on the other.

h.         notwithstanding this, the injuries sustained in the Accident do affect, to some extent, the plaintiff’s current ability to function and the quality of her life generally.  I accept the plaintiff’s evidence and that of her family members that she is no longer as happy and outgoing as she was prior to the Accident.  I do not, however, accept that this state of affairs is entirely due to the injuries sustained in the Accident.  The effect of the respiratory condition on the plaintiff’s life, which includes being the sole cause of her inability to work in a position which provided her with great personal satisfaction as a special needs educational assistant, also contributes to her current psychological state.

i.          the plaintiff has made significant recovery from the effects of the injuries sustained in the Accident.  This occurred within approximately 18 months to two years after the Accident.  She is left, however, with ongoing aches and pains to her upper back and right shoulder area.  These will continue indefinitely to some degree.  The ongoing effects of the injuries sustained in the Accident also affect to some degree her ability to perform certain household tasks…

[72]         I conclude the effect of the plaintiff’s injuries in this case, while generally comparable to those in Rozendaal and Bhadlawala, are somewhat more severe insofar as the day-to-day enjoyment of life and ability to function is concerned.  I award the plaintiff $50,000 under this head of damages, which includes $5,000 for loss of past and future loss of housekeeping capacity.

No Costs Consequences Triggered By Late Defence Formal Offer in Infant Claim

March 13th, 2013

Update June 18, 2013 – Leave to Appeal the below decision was refused by the BC Court of Appeal


Adding to the list of ‘other factors Courts can consider when deciding whether a formal settlement offer should trigger costs consequences following trial, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, considering the fact that an infant settlement would require Public Trustee approval.

In last week’s case (Nemoto v. Phagura) the Plaintiff was involved in a collision when she was 13.   One week before trial ICBC made a formal settlement offer which was $300 greater than the damages she was ultimately awarded at trial.  ICBC applied to strip the Plaintiff of her post trial costs and to be awarded theirs.  Mr. Justice Smith refused to do so noting that the offer was only 1% greater than the trial award, that there was no competing defence medical evidence to better define risk and lastly that the Public Trustee’s approval would be required which would result in an abandonment.  Addressing the last factor the Court provided the following reasons:

[10]         A further complication arose in this case from the fact the plaintiff was 17 years old at the time of trial. That means a settlement based on the formal offer would have required the consent of the Public Guardian and Trustee (“PGT”) pursuant to s. 40 (7) of the Infants Act, R.S.B.C. 1996, c.223. The absence of defence medical evidence may have made it more difficult for plaintiff’s counsel to persuade the PGT of the appropriateness of the settlement.

[11]          In any case, the PGT’s views could not likely have been obtained in the week between the date of the offer and the date of trial, requiring an adjournment of the trial. The plaintiff had to consider the delay that would have been involved in proceeding to trial at a later date in the event, however unlikely, the PGT was not prepared to consent.

[12]         In these circumstances, I cannot say that the offer ought reasonably to have been accepted and I decline to give effect to it in the matter of costs.

Passenger 50% at fault for Collision with pedestrian

March 12th, 2013

In what can only be described as a unique and bizarre collision, reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, assessing fault for a collision where an individual was struck by his own vehicle put in motion by his spouse.

In this week’s case (Mayne v. Mayne) the Plaintiff was in his vehicle with his wife, the Defendant, occupying the passenger seat.   As he was pulling out of his garage he stopped the vehicle and went back in his home to retrieve a key.   He left the vehicle running in neutral (mistakenly believing it had been placed in park).  The vehicle slowly started to run down into the roadway.  His wife, concerned it would be involved in a collision, reached over and attempted to put the vehicle in park.  She was not successful, however, and shifted the vehicle into drive.  The vehicle lurched forward and struck the Plaintiff who was just coming back out of the home.

The Court found both individuals equally to blame for the incident.  In placing 50% of the fault on the Defendant Madam Justice Bruce provided the following reasons:

[31]         Having regard to the circumstances of this case, I am unable to find that Mrs. Mayne has satisfied the onus of proof regarding the defence of “agony of the moment”. There was only a nominal risk of harm to the neighbour’s home and Mrs. Mayne panicked and took unreasonable and dangerous steps to stop the backward rolling vehicle. While Mrs. Mayne did not expect the Buick to roll backward, having no foreknowledge of Mr. Mayne’s failure to engage the emergency brake or to leave the vehicle in park, she nevertheless severely overreacted to the perceived danger. Given the very slight slope of the driveway, and viewed in light of the video presentation showing the likely speed of the Buick as it rolled backward, it is apparent that things were not happening quickly at all. The Buick was travelling ever so slowly albeit in a backward direction. There was no one in the area and the roadway was devoid of other traffic. The neighbour’s home was a considerable distance away. The Buick would have to travel out of the driveway, over the first curb, cross the roadway and negotiate the next curb, and travel through the lawn and the hedges of the neighbour’s home before it would have come into contact with a structure.

[32]         In these circumstances, Mrs. Mayne had time to consider what to do. She could have easily unbuckled her seatbelt to make it easier to reach over and place the vehicle in park. She could have simply taken the key out of the ignition. There was no imminent danger from any objective point of view.

[33]         The court must not make armchair judgments based on hindsight; however, clearly Mrs. Mayne panicked in a situation that would not have panicked a reasonable person in the same circumstances. Counsel argued that her age should be a factor. At 81, her reaction times and her judgment would be impaired. However, the law cannot countenance a lower standard for elderly drivers. Mrs. Mayne had a drivers’ licence and regularly operated the Buick. As a consequence, the court must presume that she possessed sufficient competence to operate a motor vehicle safely.

[34]         For these reasons, I find that Mrs. Mayne was negligent when she took control of the Buick and struck Mr. Mayne.

Defendant Stripped of Costs For Expert Witness Advocacy

March 11th, 2013

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, stripping Defendants of significant trial costs they otherwise would have been entitled to as a result of relying on an expert witness who crossed the line into advocacy.

In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 collisions.  He alleged he sustained a traumatic brain injury and sought damages exceeding one million dollars at trial.  The Court rejected the brain injury claim and found that the Plaintiff sustained modest injuries awarding $15,000 in total damages.  Prior to trial ICBC made a formal offer of settlement of $125,000.   ICBC sought costs from the time of the offer onward. Mr. Justice Harvey held that normally such an order was appropriate but because of the Defendant’s expert witness’ evidence at trial which crossed into advocacy and further due to the Defendant lawyer’s conduct in the course of a mid-trial application, the Defendant should be stripped of their post offer costs.  In coming to this conclusion the Court provided the following reasons:

[72]         As  earlier observed, but for the matter of the conduct of defendants’ counsel in the application for withdrawal of the admission and my findings concerning the evidence of Dr. Rees, I would have made an order under Rule 9-5(d) awarding the defendants costs in respect of the proceeding after the date of delivery of the offer to settle.

[73]         The degree to which the evidence of Dr. Rees crossed the boundary from expert opinion into advocacy is a matter which rests at the feet of the defendants. He was their witness and the defendants assume responsibility for his conduct. The Rules require experts to certify that they will prepare their reports and provide testimony in accordance with their duty to assist the court and not assume the role of advocate:Jayetileke, supra.

[74]         In LeClair v. Mibrella Inc., 2011 BCSC 533, Voith J. reduced the amount of costs payable to a successful defendant by 50% to make clear to the defendant that its conduct, in certain respects, was improper. The rebuke in costs was to signal the court’s expectation that parties will expect in a manner that is consistent with the Rules of Court.

[75]         Here, similar to LeClair, I find that the conduct of the defendants, both through the actions of their counsel, Mr. Robinson, and in an expert called on their behalf, Dr. Rees, was sufficiently outside the boundaries of expected behaviour to warrant rebuke via a denial of costs to which the defendants would otherwise be entitled.

[76]         In the circumstances, despite the September Offer and the defendants’ success on the issue of whether the plaintiff suffered an MTBI as a result of any of the four accidents, it is appropriate to deny the defendants the costs of trial leaving intact the plaintiff’s entitlement to costs up to and including the date of the offer to settle but no costs thereafter.

How Do You Restore A Trial Date if You Failed to File a Trial Certificate?

March 8th, 2013

The BC Supreme Court Rules require a trial certificate to be filed at least 14 days before a scheduled trial date.  Failure to do so requires the matter to be removed from the trial list ‘unless the court otherwise orders‘.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, addressing the framework which permits the Court to restore a trial date after if it has been removed from the trial list.  In short the Court relied on its power under Rule 12-1(9)(b) to “fix the date of a trial proceeding” to remedy the problem.

In this weeks case (Knowles v. Lan) the Plaintiff was injured in a collision.  Prior to trial ICBC sought to have the matter adjourned but the application was dismissed.  The Plaintiff’s lawyer then forgot to file a trial certificate and the matter was removed from the trial list.  Mr. Justice Halfyard restored the trial date and in doing so provided the following reasons addressing the proper framework for such a remedy:

[24]         The first question is whether Rule 12-4 (5) gives the court power to restore a proceeding to the trial list, after it has been removed for non-compliance with Rule 12-4 (2). I would say firstly that, because of the mandatory wording in Rule 12-4, the filing of at least one trial certificate is a necessary condition for a trial to proceed. As a consequence, I do not think the court could dispense with the filing of any trial certificate, but could only grant leave to file it less than 14 days before trial.

[25]         In my opinion, a party who seeks to have a trial restored to the trial list must first obtain leave to file a trial certificate “late,” under Rule 22-4 (2). If such leave is granted, and a trial certificate is filed in accordance with the order, that filing would not have the effect of restoring the trial to the trial list from which it had been removed. Could the court make such a restoration order, under Rule 12-4 (5)?

[26]         In my opinion, Rule 12-4 (5) should be read so as to include the additional underlined words, as follows:

(5)  Unless the court otherwise orders, if no party of record files a trial certificate in accordance with sub-rule (2), the trial must be removed from the trial list.

[27]         In my view, Rule 12-4 (5) is designed to prevent an action being removed from the trial list for failure to file a trial certificate as required by subrule (2). It does not state that, if a trial has been removed from the trial list, the court may restore that trial to the trial list. Nor do I think that such a power is implicit in that subrule. In order to preserve a trial date by invoking this Rule, I think the application and the order would have to be made before the 14 day deadline. That was not done here, and so this rule cannot be relied upon…

[29]         It may be that Rule 1-3 provides inherent jurisdiction to make an order restoring this action to the trial list for March 4, 2013. But it seems to me that Rule 12-1 (9) provides specific authority to do this. Subrule (9)(b) states:

(9)  The court may

. . .

(b) fix the date of trial of a proceeding,

. . .

[30]         When this action was struck off the trial list, there was no longer any date scheduled for the trial. The subrule I have just referred to does, in my opinion, empower the court to fix a date for the trial of this proceeding which coincides with the previously – scheduled trial date of March 4, 2013. I would rely on that subrule in making the order to reinstate this action for trial on March 4, 2013.

[31]         Authority might also be found in Rule 22-7(2)(e), which states in relevant part as follows:

(2)  . . .  if there has been a failure to comply with these . . . Rules, the court may

. . .

(e) make any other order it considers will further the object of these . . .  Rules.

[32]         In my opinion, the reasons I have outlined support the orders that I made on February 27, 2013.

Case Plan Conference Orders Can't Trump Privilege

March 7th, 2013

Last year I highlighted a decision confirming that the Court’s powers under the new rules of court don’t allow orders to be made which will trump legitimate privilege claims.  Reasons for judgement were released earlier this month by the BC Supreme Court, Vancouver Registry, confirming this principle.

In the recent case (Blackwell v. Kwok) the Defendant sought an order at a Case Planning Conference requiring the Plaintiff to disclose the specialty of the expert witness(es) the Plaintiff intends to rely on.  The Court refused to make this order finding it would trump the privilege in the Plaintiff’s counsel’s solicitor’s brief.  In dismissing the request Mr. Justice Funt provided the following reasons:

[11]         Plaintiff’s counsel referred me to the Court’s decision in Nowe v. Bowerman, 2012 BCSC 1723.  In Nowe, the defendant proposed that each party be limited to one expert each and that the plaintiff advise the defendant of the area of expertise by November 17, 2012, approximately ten months before the scheduled trial.  The Court denied the application:

[10]  The area of expertise of an intended expert witness is a matter of trial strategy.  Trial strategy is a key component of a solicitor’s brief.  It may well evolve as plaintiff’s counsel builds a case and makes decisions based upon a myriad of factors and considerations.  Intentions may change as the process unfolds over time.

[11]  In my view, unless and until the intention to rely upon a particular expert in a particular field is declared by delivery of a report in accordance with the timelines established by the Rules, in the absence of a compelling reason an early incursion into this aspect of the solicitor’s brief will not be justified.

[12]  That being said, there may well be cases in which a departure from the usual timelines can be justified.  For example, in complex cases such as those involving brain injuries as a matter of fairness it may be necessary to provide defence counsel with a longer period than would be available under the usual regime in order to schedule appointments with certain kinds of experts. …

[12]         I note that in Nowe, the plaintiff argued that it was “not the kind of case in which a long period is required in advance of an appointment being made with a certain type of expert” (para. 7).  Although possibly a longer period may be justified in some cases, I am not satisfied that a “departure from the usual timelines can be justified” in the case at bar.

[13]         In my view, the defendants’ application should be rejected.  I see no prejudice if the normal rules for delivery of expert reports apply.  If the defendants choose to retain an expert to conduct an independent medical examination and prepare a report based on the plaintiff’s pleaded injuries, but no psychological injury is alleged at trial, an appropriate award of costs will afford the defendants the necessary relief.

[14]         Not surprisingly, I cannot state matters better than Chief Justice McEachern in Hodgkinson: “While I favour full disclosure in proper circumstances, it will be rare, if ever, that the need for disclosure will displace privilege”.

[15]         The Court declines to make the order sought.


$65,000 Non-Pecuniary Assessment for Chronic Frontal Headaches

March 6th, 2013

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for chronic headaches caused by a motor vehicle collision.

In this week’s case (Murphy v. Obrien) the Plaintiff was involved in a 2007 collision.  The Defendant accepted liability.  The Plaintiff suffered various soft tissue injuries which posed problems but the most debilitating consequence were chronic frontal headaches which were still symptomatic at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Steeves provided the following reasons:

[51]         There is general acceptance among the experts that the plaintiff suffered a soft tissue injury to his neck on May 17, 2007. There was no fracture, dislocation or nerve root injury. There is restricted range of motion in all directions and even simple tasks such as reading bring on headaches and neck pain. The plaintiff testified that, at times, he actually vomits because of the pain from his headaches. He has tried various treatments with some affect. The most recent has been Botox injections which have given him some relief. For example, Dr. Tsui administered the injections and, in a report dated May 10, 2012, he reported that the plaintiff said “the migrainous headaches have abated since the last treatment.” Similarly a report dated August 15, 2012 reported a “good response in terms of the migraines.” Despite this improvement the frontal headaches continue. The plaintiff’s evidence about his headaches is consistent with that of Dr. Tsui.

[52]         Therefore, the current situation is that the severe migrainous headaches have abated but the frontal headaches remain and they are chronic. I conclude that these headaches, and the neck pain, are as a result of the May 2007 motor vehicle accident. Further, these symptoms are independent of any problems with the left knee although, as will be seen, the left knee is certainly a relevant and complicating factor. These headaches are obviously very real for the plaintiff, with the consequences noted, and they are consistent with the medical evidence…

[62]         Overall, I conclude that an amount of $65,000 is an appropriate amount for non-pecuniary damages in this case. That figure recognizes the chronic frontal headaches. It also recognizes the undoubted emotional toll the headaches have had on his life, including his family, friends and the limitations on activities he used to do before the 2007 accident. And, it recognizes that pain medications for the left knee have played a role in the current situation.

For more BC non-pecuniary assessments for headaches you can click here to search this site’s archives.