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 September, 2013

Ovetaking Vehicle Striking Left Hand Turning Car Fully At Fault for Collision

September 30th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing fault for a collision involving a vehicle overtaking another.

In last week’s case (Shallow v. Dyksterhuis)  the Defendant was driving behind the Plaintiff when the Plaintiff vehicle slowed near an intersection.  The Defendant attempted to pass the vehicle by overtaking it on the oncoming lanes.  At the same the time the Plaintiff attempted a left hand turn and a collision occurred. In finding the Defendant fully liable for the collision Mr. Justice Kelleher provided the following reasons:

[3]             The accident took place on March 24, 2008 in the area of Charlie Lake, northwest of Fort St. John, B.C.  Ms. Orcutt was driving south on the Alaska Highway, Highway 97.  She intended to turn left onto an access road, two kilometers south of the junction with Highway 29. 

[4]             Highway 97 has one southbound lane in this area.  However, there is a right turn lane and a left turn lane, as well as the through lane, at this intersection.  The intersection is not controlled by a traffic light.  The northbound lanes and southbound lanes are separated by a solid double yellow line, making it a no passing lane. 

[5]             The accident occurred at 8:30 a.m.  There was daylight.  The roads were covered with snow and it was continuing to snow.  Visibility was satisfactory.  Ms. Orcutt testified that she had her left turn signal on.  As she commenced her turn, the defendant’s vehicle struck her vehicle as he was attempting to overtake her by passing her on the left.

[6]             The defendant testified that he was driving south in a loaded logging truck.  He had started work at 12:30 a.m. that day and was hauling the logs from an area north of the accident scene to a mill south of Fort St. John.  This was his second load of the day. 

[7]             Mr. Dyksterhuis testified that he was travelling in the one southbound lane.  He noticed the plaintiff’s car driving south in front of him.  He saw the vehicle slow down and saw that the brake lights were coming on and off.  Mr. Dyksterhuis knew that Ms. Orcutt was at an intersection, but assumed, mistakenly, that there was no left turn possible there.  He presumed, then, that the plaintiff was either turning right or stopping on the highway. 

[8]             The defendant decided it was safe to pull out and pass her on the left.  As he came up on her left, she began her left turn.  His front bumper struck her vehicle. ..

25]         There is no dispute that Mr. Dyksterhuis tried to pass the plaintiff on the left in a no passing zone.  There was a solid double yellow line on the highway, but it was covered with snow. 

[26]         Mr. Dyksterhuis should not have attempted to pass Ms. Orcutt.  First, he was in a no passing zone.  Second, he wrongly assumed that she was not able to turn left at that place.  Third, he was passing against a double solid line and did not sound his horn to warn Ms. Orcutt that he intended to overtake her. 

[27]         The defendant received a Violation Ticket charging him with two offences: unsafely passing on the left (s. 159) and following too closely (s. 162(1)).  The defendant did not dispute the ticket.  Therefore, he is deemed to have pleaded guilty: Offence Act, R.S.B.C. 1996, c. 338, s. 14(11).

[28]         The defendant concedes he was partly to blame for the accident, but argues that Ms. Orcutt was also partly to blame.  This is said to be based on her admission that she did not look over her left shoulder to determine whether there was a vehicle passing her before commencing her left turn. 

[29]         I am not persuaded that Ms. Orcutt’s action in not looking over her shoulder, amounts to a failure to take reasonable care.  She was making a lawful left turn.  She was in an area where passing was not permitted.  She was in the left turn lane.  The defendant did not sound his horn to warn her. 

[30]         Mr. Dyksterhuis faced a situation in which the intention of Ms. Orcutt was uncertain to him. His decision to pass her when faced with that uncertainty gives rise to total liability. For these and the above reasons, I conclude that the defendant is 100% at fault.


$95,000 Non-Pecuniary Assessment for Permanent Knee Injury Likely Requiring Replacement

September 27th, 2013

Adding to this site’s database addressing non-pecuniary damages for knee injuries, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing such an injury.

In the recent case (Majchrzak v. Avery) the Plaintiff was injured in a 2007 motorcycle collision when the Defendant’s vehicle failed to yield the right of way.  The Plaintiff suffered a knee injury which continue to pose problems at the time of trial and likely would need full replacement in the future. In assessing non-pecuniary damages at $95,000 Madam Justice Brown provided the following reasons:

[81]         I consider the following factors relevant in this case:

(a)      Age of the plaintiff: Mr. Majchrzak was 51 years old at the time of trial. The evidence establishes that he will likely suffer some measure of pain for the remainder of his life.

(b)      Nature of the injury: Mr. Majchrzak suffered grade 2 chondromalacia and post-traumatic arthritis from the impact of the accident. His knee is permanently damaged, and it is likely that he will require knee replacement, although it is unclear when that will be. He also suffered minor injuries and bruising to his left hand and back that resolved uneventfully.

(c)      Severity and duration of pain: Almost six years post-accident, the plaintiff continues to suffer pain daily. While he has been able to work through the pain, by doing stretching exercises, icing his knee and taking medication, I have concluded that he has endured much pain doing so. Indeed, he is now retraining to work in a less physically demanding position.

(d)      Disability: The plaintiff has a permanent impairment of his physical capabilities.

(e)      Emotional suffering: Dr. Raffle and Mrs. Majchrzak both gave evidence that Mr. Majchrzak has suffered some measure of depression and anxiety caused by chronic pain and his inability to work and provide for his family.

(f)       Loss and impairment of life: Mr. Majchrzak has permanent injuries that require him to leave what he described as his “dream job”. Furthermore, many of his non-work activities, such as ballroom dancing with his wife, sports activities with his children, and maintenance of his home have been affected.

[82]         After both reviewing the authorities and considering the specific factors in this case, in my view, an appropriate award for the plaintiff is $95,000.


“Chandi is Binding” Registrar Allows Interest on Disbursement Claim

September 26th, 2013

One of the developing areas of law relates to whether interest charged on disbursements are recoverable under the BC Supreme Court rules.  The BC Court of Appeal may weigh in on the subject but until that time, useful reasons for judgement were released noting that interest on disbursements can indeed be recovered.

In this week’s case (Franzman v. Munro) the parties could not agree on the reasonableness of many disbursements incurred in a personal injury claim which totaled approximately $90,000.  The interest for financing these disbursements came to over $5,000.   Although there was mixed success on some of the claimed disbursements the Court noted that the interest charged was a fairly claimed item.  In reaching this conclusion Master McDiarmid provided the following reasons:

[27]         I find that it was necessary for the plaintiff to incur significant disbursements in order to properly pursue her claim. I find as well that the arrangement she made with her lawyer was both necessary and proper.

[28]         We are constantly hearing how difficult it is for ordinary people to afford access to our courts. The fee agreement entered into between the plaintiff and her lawyer facilitated her having access to the courts. The interest rate charged by the law firm, that being essentially the interest it was paying on its operating line of credit (a way in which many law firms finance their operations) is reasonable.

[29]         Defendant’s counsel advised that Chandi is under appeal. Plaintiff’s counsel pointed out that the plaintiff has no ability to control whether that appeal will ever proceed, and the plaintiff should not be restricted from executing on its judgment, including costs, while awaiting the unknown result of an appeal.

[30]         Savage J., at paras. 35 and 36, gave a succinct and accurate analysis of comity and the principles enunciated in Re Hansard Spruce Mills, [1954] 4 D.L.R. 590 (BCSC), as follows:

[35] In Re Hansard Spruce Mills, Wilson J., as he then was, was asked to give a ruling that was at direct variance with the ruling of a fellow judge of the Supreme Court. In refusing to contradict the ruling of a judge of the same court, Wilson J. said:

The Court of Appeal, by overriding itself in Bell v. Klein, [1954] B.C.J. No. 152, has settled the law. But I have no power to overrule a brother Judge, I can only differ from him, and the effect of my doing so is not to settle but rather to unsettle the law, because, following such a difference of opinion, the unhappy litigant is confronted with conflicting opinions emanating from the same Court and therefore of the same legal weight. This is a state of affairs which cannot develop in the Court of Appeal.

Therefore, to epitomize what I have already written in the Cairney case, I say this: I will only go against a judgment of another Judge of this Court if:

(a)        Subsequent decisions have affected the validity of the impugned judgment;

(b)        it is demonstrated that some binding authority in case law, or some relevant statute was not considered;

(c)        the judgment was unconsidered, a nisi prius judgment given in circumstances familiar to all trial Judges, where the exigencies of the trial require an immediate decision without opportunity to fully consult authority.

If none of these situations exist I think a trial Judge should follow the decisions of his brother Judges.

Re Hansard Spruce Mills at 592.

[36] Re Hansard Spruce Mills has been cited in over 460 cases (and counting). It has a lengthy history of application in British Columbia courts and has been described as the “dominant approach” to judicial comity in Canada: Debra Parkes, “Precedent Unbound? Contemporary Approaches to Precedent in Canada” (2007) 32 Man. L.J. 135 at 160.

[31]         Chandi is binding on me. No restriction is placed on the award of interest as part of my assessment of costs. The interest claimed is both necessary and proper, and is claimed in a reasonable amount. It is allowed in full as claimed.


Slip and Fall Claim Dismissed Due To Lack of Proof of Hazard

September 25th, 2013

As previously discussed, slipping and falling in and of itself does no lead to a successful lawsuit for damages.  There needs to be evidence of negligence or a breach of the Occupier’s Liability Act for such a claim to succeed.  Absent proof of a hazard causative of the fall claims fail at trial.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.

In this week’s case  (Fulber v. Browns Social House Ltd.) the Plaintiff was a customer at the Defendant’s restaurant.  She was “wearing high-heeled shoes with a stiletto heel four and a half inches high“.  As she was walking in the restaurant she slipped and fell on the hard wood floor.   .  She did not notice anything on her shoes or her clothes “and did not feel any dampness on her bare skin“.  The Court noted that although the Plaintiff deposed “that she slipped on something” she could not identify the hazard she fell on her belief was based on inferences which she has drawn “essentially on the fact that she fell”.  The Court noted that this was not sufficient to prove wrongdoing by the Defendant and dismissed the claim.  In doing so Madam Justice Gray provided the following reasons:

[48]         The evidence does not establish that there was any hazard on the floor that caused Ms. Fulber to fall, whether it was a liquid or another foreign substance. Neither does the evidence give rise to a reasonable inference that there was liquid or another foreign substance on the place that Ms. Fulber fell.

[49]         While the place that she fell was relatively close to the bar, it was a matter of feet from the serving area. It is highly unlikely that a drink would slosh all the way from the serving area to that area on the floor. While it may be possible that there have been times that some liquid has fallen in the place where Ms. Fulber fell, on all the evidence I must conclude that there was not a hazard in the place where Ms. Fulber fell.

[50]         As a result, I must allow Rumpel’s application. I find that Ms. Fulber has failed to establish that Rumpel is liable for the injuries from the fall and I must dismiss her claim.

[51]         Rumpel is entitled to its costs.


$35,000 Non-Pecuniary Assessmemnt for Broken Wrist Caused by Assault

September 24th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Smithers Registry, assessing damages for injuries sustained in an assault.

In last week’s case (Abbott v. Glaim) the Plaintiff and Defendant were together at a house party when they became involved in a brief verbal confrontation.  Although the Court was presented with competing versions of what actually transpired the Court ultimately accepted that following the verbal exchange the Defendant “took both hands and pushed (the Plaintiff) backwards off the deck to the concrete pad below”.

The Plaintiff suffered various injuries including a fractured wrist.  In assessing non-pecuniary damages at $35,000 Mr. Justice Skolrood provided the following reasons:

[133]     It will be apparent from the above that I accept Joyce’s evidence that she was pushed down the stairs by Lucy…

[137]     The most significant injury suffered by Joyce was to her left wrist. An initial x-ray of the wrist, taken on March 26, 2006, did not reveal a fracture but a subsequent x-ray done on April 5, 2006 showed an undisplaced fracture of the distal radius in her left wrist. A cast was applied which she wore until May 19, 2006.

[138]     Joyce underwent physiotherapy treatments for her wrist beginning in early April 2006. She attended 22 physiotherapy sessions over the course of approximately one year. Joyce testified that her wrist continued to cause her pain and discomfort for a considerable period of time, particularly given that her work as a dental hygienist requires her to use both hands and wrists extensively. Joyce described her left hand as the “mirror hand” in that, because she is right handed, the left hand does things like holding the mirror and pulling the patient’s cheek back while the right hand uses the dental instruments.

[139]     As a result of her wrist injury, Joyce was away from work until June 2006. She initially tried to return to work on a full time basis but quickly scaled back from eight to six hours a day because of ongoing difficulties. It was not until August of 2007 that she was able to return to working an eight hour shift.

[140]     In addition to her wrist injury, Joyce testified that she began to experience regular headaches following the incident. Sometime in 2008, she attended a work seminar in Vancouver on temporomandibular joint (“TMJ”) issues which caused her to consider whether her headaches were the result of a TMJ disorder. She spoke to both her doctor and her dentist about this and she was sent for testing.

[141]     On February 11, 2009, she underwent a CT scan of her head which revealed “focal degenerative activity in the left mandibular condyle.”  The imaging report further notes: “This is an unusual location and raises the possibility that this could be a result of previous trauma.”

[142]     Joyce was examined by a dentist, Dr. Kinkela, on May 5 and June 16, 2009 and he found her symptoms to be consistent with trauma to her TM joints, “particularly an acceleration/deceleration type of an event that would illicit some soft tissue strain on the TMJ supporting structures and lead to a subsequent inflammatory response.”

[143]     However, Dr. Kinkela also noted that he did not have any of Joyce’s records pre-dating the incident so he could not conclusively state the cause of Joyce’s symptoms.

[144]     Joyce was prescribed both a night and a day guard to wear in her mouth which are intended to relieve pressure on the TMJ. Joyce testified that she wears the guards and that they have been useful in reducing the frequency of her headaches.

[145]     One other consequence of the incident according to Joyce has been an increased sense of anxiety and periodic panic attacks. Her doctor prescribed her an antidepressant that she continues to take as well as Ativan to deal with the panic attacks. Joyce testified that she no longer takes the Ativan as the frequency of her panic attacks has diminished.

[146]     Joyce testified to the significant emotional upset and embarrassment she experienced as a result of the incident, the effects of which continued to be felt at the time of trial. She said that she strives to be a role model for her 17 year old daughter, and in the community generally, and that it was traumatizing to be involved in an incident of this nature…

[156]     Taking account of all of the evidence and considering the factors articulated by the Court of Appeal in Stapley I award Joyce $35,000 under this head.

 


Bus Driver Liable for Collision After Failing to Stop for Running Passanger

September 23rd, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing fault for a collision between a bus and a pedestrian attempting to catch it before it departed.

In last week’s case (Heyman v. South Cost British Columbia Transportation Authority) the Plaintiff was attempting to catch a bus which was stopped at a bus stop.   He ran towards it, approaching from its front, waving his hand in the air trying to get the motorists attention.  The bus driver closed the doors and put the vehicle into motion just as the Plaintiff approached colliding with his waving hand.   The impact caused him to spin around and fall to the ground. His ankle was run over by the rear of the bus and he also suffered a broken shoulder.

The bus driver argued there was a strict policy “that if a pedestrian is even one foot away from the bus stop when the doors close, the bus leaves“.  Mr. Justice Skolrood rejected this finding there was no such written policy noting that the written policy stated that “to arrive safely is more important than to arrive on time. The obvious safety of passengers, employees, travelers and pedestrians on the streets and highways must be given precedence over every other consideration.”

Mr. Justice Skolrood went on to note that in any event the bus driver was careless in departing when he did given the proximity of the pedestrian.  In finding both parties negligent in the incident the Court provided the following reasons:

[66]         The analysis then turns to whether Mr. Cooper failed to meet the standard of care of what would be expected of a reasonably prudent bus driver in the circumstances. This questions turns on whether it was reasonable for Mr. Cooper, in compliance with what he understood company policy to be, to simply close the doors of the bus and accelerate away from the bus stop notwithstanding Mr. Heyman’s approach.

[67]         In my view, reliance on this alleged policy is no answer to the claim that Mr. Cooper breached the standard of care. I say alleged policy because it is not set out anywhere in writing, notwithstanding that West Vancouver Transit has in place an extensive policy manual setting out detailed operational practices and policies. That said, I have no reason to question Mr. Cooper’s evidence that drivers are instructed to leave once there is no one else waiting at a bus stop.

[68]         However, Mr. Cooper’s conduct is not to be measured against a general policy, but rather must be considered in light of the circumstances that presented at the time. As noted by Madam Justice Rowles in Wang, the question is whether there was a real risk of harm that could reasonably be avoided.

[69]         In my view, Mr. Heyman approaching the bus in an awkward run waving his arms in the air with a view to getting the driver’s attention and hopefully having the bus stop so he could board, presented a real risk of harm. I note in particular the fact, as pointed out by counsel for the defendants, that the road on which the bus was situated was quite narrow, in fact not much wider than the bus itself. That put the bus in close proximity to pedestrians on the adjacent sidewalk and heightened the need for vigilance on Mr. Cooper’s part. Again, that is particularly so given the manner in which Mr. Heyman was approaching…

[84]         In the circumstances, I find that Mr. Heyman was 60% responsible for the accident and Mr. Cooper 40%.


Pedestrian 70% at Fault For Jaywalking Collision

September 20th, 2013

Adding to this site’s archived claims involving pedestrian collisions, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing fault for an incident involving a pedestrian who was crossing a street outside of a crosswalk.

In this week’s case (Khodadoost v. Wittamper) the Plaintiff pedestrian started crossing McKay Avenue in Burnaby, BC two car lengths north of the intersection.  The defendant motorist was stopped in the curb southbound lane.  As the pedestrian stepped in front of the vehicle the Defendant started to drive forward as his light had turned green.

In finding the pedestrian 70% at fault for the incident Mr. Justice Betton provided the following reasons:

[13]         The incident occurred while the plaintiff was crossing McKay Avenue at Kingsway Avenue, in Burnaby, British Columbia. He had obtained a ride from a friend, Ms. Khaki-Khaljan, to the area. She pulled off to the right of the northbound lane of McKay Avenue approximately two car lengths north of Kingsway Avenue. When the plaintiff exited the vehicle, he began crossing McKay Avenue west and outside of the crosswalk but moving at an angle toward the crosswalk…

[18]         When the southbound traffic began to move forward, the defendant followed. The plaintiff at that time was adjacent to the front driver’s side corner of the defendant’s car. The defendant’s vehicle may have made a very slight contact with the plaintiff before the defendant initially applied his brakes. When he placed his foot on the brake pedal, however, his foot slid off the pedal allowing his vehicle to move forward, essentially in a second forward motion. At that time, there was contact between the plaintiff and the defendant’s vehicle, and the plaintiff fell or was knocked to the road…

[64]         There is no question that the plaintiff began his crossing of McKay Avenue outside of the crosswalk. That fact is, however, of limited relevance. What is particularly important is the condition of the pedestrian and traffic control signals, and the plaintiff’s positioning relative to the crosswalk as he moved past the center point of the road and across the southbound lanes.

[65]         I am satisfied on the evidence that by the time the plaintiff had begun to cross those southbound lanes, the traffic signal for southbound traffic was green. All of the evidence indicates that traffic generally, including the defendant, had begun to move. Neither the plaintiff nor the defendant commented specifically on the condition of the traffic signal, but it is the only logical inference from the evidence as a whole…

[77]         It is my conclusion that the plaintiff must bear the majority of the liability for the incident. I apportion liability 70 percent to the plaintiff and 30 percent to the defendant. An award of damages must be adjusted based on this division of liability.

 


Lack of Business Records Negativley Impacts Diminished Earning Capacity Claim

September 19th, 2013

When a self employed individual fails t properly account their business income and expenses this can create difficulties in advancing a claim for diminished earning capacity.  Reasons for judgemetne were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.

In this week’s case (Musgrove v. Elliot) the Plaintiff was involved in two collisions.   The Defendants admitted liability.  THe Plaintiff sustained vaiours injuries which were still symptomatic at the time of trial.  He was self employed as a builder of residential decks and fences.  The Plaintiff’s injuries negatively affected him at work such that he had to rely more heavily on subcontractors and labourers to do work he otherwise would have done himself.  The Court accepted this, however, awarded only a fraction of the damages the plaintiff was seeking for these losses based on the Plaintiff’s lack of corroborating records.  In doing so Mr. Justice  Johnston provided the following reasons:

[56]         In late 2007 Mr. Musgrove moved to the Victoria area and began to establish himself in his own business as a fence and deck builder. He had perhaps 10 months to build that business before the first of his two accidents, and in that time he kept lamentably few records of his earnings or expenses.

[57]         There is thus little reliable evidence of what Mr. Musgrove actually earned before the first accident, and evidence of actual earnings is usually the most reliable basis on which to assess damages for income losses claimed as a result of an accident.

[58]         Mr. Musgrove’s poor record keeping habits continued after the accidents, leaving little upon which to base a confident assessment of what he has earned since the first accident, or what he has paid out to others to do work he says he could and should have been able to do himself but for his injuries…

[72]         I am satisfied that as a result of the injuries he suffered in the accidents, Mr. Musgrove had to hire others to do work that he would have done himself had he not been injured. This represents a loss to Mr. Musgrove for which he should be compensated.

[73]         Mr. Musgrove must accept responsibility for the consequences of his poor or non-existent records. One such consequence may be an award lower than it might have been had he kept proper records. In all of the circumstances, I assess Mr. Musgrove’s loss of earning capacity at $20,000 from the time of the accident to trial.


Cyclist Fully at Fault For Collission Following Careless Lane Change; No Adverse Inference From Defendant Failing to Tesitfy

September 17th, 2013

Interesting reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dismissing a plaintiff’s claim following a bicycle/vehicle collision.

In last week’s case (Miles v. Kumar) the Plaintiff was cycling Eastbound along Grandview Highway in Vancouver when he moved from the right into the left lane in preparation for a left turn at an upcoming intersection.  The Defendant was travelling in this lane and a collision occurred shortly after the lane change.  Mr. Justice Bernard found the plaintiff fully at fault an in doing so reached the following conclusions:

[62]         In summary, with due regard for all the foregoing, I make the following determinations: (a) that as Ms Kumar travelled in the left lane to the point of the collision, she enjoyed the right of way; (b) that the evidence does not reasonably support a finding that Ms Kumar was, at the time, driving without due care and attention, or without reasonable consideration for other persons using the highway, or at a speed that was excessive to the conditions; (c) that when Mr. Miles entered the left lane in front of Ms Kumar his bicycle was servient to Ms Kumar’s car; and, (d) that when Mr. Miles entered the left lane he did so in breach of his statutory duties pursuant to ss. 151(a) and 151(c) of the MV Act.

[63]         In addition to the foregoing, I am also satisfied that there is no evidence upon which I could reasonably conclude: (a) that Ms Kumar ought to have known that Mr. Miles would disregard her right of way; or, (b) that there was sufficient opportunity for a reasonably careful and skilled driver in the position of Ms Kumar to avoid colliding with Mr. Miles (see Walker v. Brownlee, supra).

Interestingly the Defendant never testified at trial despite fault being disputed.   The Court was asked to draw an adverse inference but Mr. Justice Bernard refused to do so. The Court provided the following comments on this issue:

[66]         The plaintiff has submitted that the Court should draw an inference adverse to the defendants because Ms Kumar – “the only person who could have provided evidence as to her position, speed, attentiveness, driving experience, familiarity with the road, as to when she first saw Mr. Miles, and as to why she made no attempt to avoid a collision” – who had been scheduled to testify, did not do so, and without explanation. In support of this position, the plaintiff cites Bronson v. Hewitt, 2010 BCSC 169. In Bronson, the court drew an adverse inference against the defendants because one of the defendants did not testify. The court found that this defence decision deprived the court of the best evidence of conversations critical to deciding the case.

[67]         The defendants submits that Bronson is distinguishable from the case at bar. In Bronson, a positive defence was advanced; one which required proof of the content of critical conversations between the two defendants. The court observed that evaluating the defence advanced obliged the court to consider the credibility of both defendants, and the failure to call one defendant deprived the court of the best evidence of the conversations and the opportunity to assess credibility – a matter very much in issue.

[68]         In the case at bar, the defendants note that a positive defence has not been advanced. Here, the defendants simply rely upon the onus the plaintiff bears to prove its case. The defendants’ position is that the plaintiff has failed to prove the negligence alleged. In support they cite McIlvenna v. Viebig, [2012] B.C.J. No. 292, 2012 BCSC 218. In reviewing the law on adverse inferences, the court in McIlvenna stated:

[70]      The law with respect to adverse inferences in civil cases when witnesses are not called is summarized in Halsbury’s Laws of Canada [Civil Procedure II, 1st ed (Markham: LexisNexis, 2008) at para 228; Evidence, 1st ed (Markham: LexisNexis 2010), at para 14] under both Civil Procedure, and Evidence headings, respectively, as follows:

It is highly unusual for a party not to testify in a civil trial. The court may draw an adverse inference from the fact that a party fails to testify, provided that it is reasonable in the circumstances to do so. In order for an adverse inference to be drawn, there must be a dispute as to those facts concerning which the party would be competent to testify. Furthermore, if the plaintiff has failed to establish a prima facie case against the defendant, no adverse inference will be drawn should the defendant not testify. Nor is a party required to testify to rebut allegations that are plainly absurd. More generally, an adverse inference will not be drawn where the effect of drawing such an inference is to reverse the onus of proof.

There is no obligation on any party to call any particular witnesses. However, the trier of fact may draw an adverse inference from a party’s failure to call a witness whose testimony would be expected to assist the party’s case.

[69]         Having regard to the foregoing, I agree with the defendants that the effect of drawing an adverse inference against Ms Kumar would be to reverse the onus of proof; moreover, Ms Kumar was extensively cross-examined at her Examination for Discovery and the plaintiff chose to “read in” many of Ms Kumar’s answers as evidence in the plaintiff’s case.

[70]          I am satisfied that there is a critical distinction between the case at bar and that in Bronson. Here, the defendants have not advanced a positive defence and then elected not to testify in support of it. In such circumstances, the defendants are entitled to rest upon the plaintiff’s failure to prove his case. Drawing an adverse inference against the defendants for the failure to present a case with Ms Kumar as a witness would undermine the fundamental legal premise that it is the party alleging the wrongdoing who bears the onus of proof.


Knocking Down The House of Cards – Break the Facts, Break the Opinion

September 16th, 2013

When opinion evidence is introduced into court the factual underpinnings which the opinion is based on must be proven otherwise the opinion evidence is of no value.  This was demonstrated in reasons for judgement released last week by the BC Supreme Court.

In the recent case (Paller v. Regan) the Plaintiff was injured in a 2009 collision.  ICBC admitted the defendant was at fault but disputed the collision caused any injuries.  In support of their position they relied on an orthopaedic surgeon who never examined the Plaintiff but provided an opinion that it was “unlikely” the Plaintiff’s injuries were caused by the crash.  In support of this conclusion the doctor assumed this was a low speed impact.  Madam Justice Fenlon rejected this evidence finding that the foundation of the opinion was not proven.  In dismissing the surgeon’s evidence the Court provided the following reasons:

[25]         The only medical opinion evidence tendered by the defence is a report of Dr. Dommisse, an orthopedic surgeon. He did not examine Mr. Paller, but reviewed medical records, imaging, and the reports of Drs. Whittington and Chu. Dr. Dommisse opined that it is unlikely that the accident caused a disc tear or herniation. He stated in his written report:

As outlined above, I have not had the benefit of examining Mr. Paller. I am therefore unable to fully comment on Dr. Chu’s report. In my opinion, however, it is unlikely that Mr. Paller suffered a disc tear and/or disc protrusion at L4/5 in a motor vehicle accident of this magnitude.

In my clinical experience, I have seen approximately four lumbar disc herniations as a result of motor vehicle accidents. These accidents were higher velocity collisions, two of which occurred when the driver drove head on into a house.

[26]         Dr. Dommisse assumed that the speed of Mr. Regan’s vehicle was 5 km/h, a number provided by Mr. Regan in a statement given to ICBC shortly after the accident. In cross-examination Mr. Regan was unable to be precise about his speed. He agreed that he was accelerating on to the street, that his speed was moderate, and that he did not brake before the collision.

[27]         I conclude that the opinions of Dr. Chu and Dr. Whittington are to be preferred to that of Dr. Dommisse. As he acknowledged, Dr. Dommisse’s opinion was restricted by lack of an examination of the plaintiff. Further, it was largely anecdotal and was based on a fact, the speed of Mr. Regan’s vehicle at 5 km/h, that was not proved at trial.

[28]         Dr. Jung is a psychologist who has treated Mr. Paller on two occasions. He provided an opinion that Mr. Paller is suffering from Anxiety Disorder, NOS, as defined in the DSM 4, the Diagnostic and Statistical Manual of Mental Disorders. Dr. Jung is of the opinion that the anxiety developed as a result of a reaction to chronic injury and pain. I accept his opinion.

[29]         In summary on this issue, I find that Mr. Paller’s injuries, physical and psychological, were caused by the accident on February 24, 2009.