BC Injury Law and ICBC Claims Blog

Erik MagrakenThis Blog is authored by British Columbia ICBC injury claims lawyer Erik Magraken. Erik is a partner with the British Columbia personal injury law-firm MacIsaac & Company. He restricts his practice exclusively to plaintiff-only personal injury claims with a particular emphasis on ICBC injury claims involving orthopaedic injuries and complex soft tissue injuries. Please visit often for the latest developments in matters concerning BC personal injury claims and ICBC claims

Erik Magraken does not work for and is not affiliated in any way with the Insurance Corporation of British Columbia (ICBC). Please note that this blog is for information only and is not claim-specific legal advice.  Erik can only provide legal advice to clients. Please click here to arrange a free consultation.

Archive for October, 2013

Previous Admissions of Potential Violence Ordered Disclosed in Personal Injury Claim Against Security Guard

October 31st, 2013

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of document production in a case alleging injury caused by a security guard.

In today’s case (Ash v. Zellars Inc.) the defendant security guard “arrested the plaintiff for theft“.  In the course of restraining the 16 year old girl the Defendant “used his legs as a lever to get the plaintiff to the ground”.  The plaintiff’s head struck the floor.  She lost consciousness and allegedly suffered a fractured skull.

In the course of the lawsuit the Plaintiff learned that the Defendant unsuccessfully applied to become a police officer with the RCMP, the Vancouver PD, and the Transit Police.  The Plaintiff sought the applications to be disclosed but the Defendant refused.  The Court held that while the full applications were not relevant, portions were, and ordered that the portions questioning about past violent altercations to be disclosed.  In ordering partial production Master Taylor provided the following reasons:

[14]         Plaintiff’s counsel maintains that the application forms are important due to questions asked about the applicant’s propensity for violence, propensity for inappropriate sexual behaviours and propensity for dishonesty. These questions are located at page 16 of the application form under the heading, Personal Relationships. There are thirteen questions under this heading and I set them out below with the question number from the application form:

58.       Provide details on all physical altercations you have had with a spouse or partner, or anyone associated to you in a domestic or family relationship.

59.       What is the worst emotional experience you have ever had?

60.       provide details on when you have used, or threatened to use, physical violence toward any adult person. (Sports or otherwise) (their emphasis)

61.       Provide details where you have used physical force toward a child.

62.       Provide details of the time/s where you may have paid, or been paid, for sexual activities.

63.       Have you ever sexually forced yourself on another?  Have you ever been accused of forcing yourself on another?

64.       Have you ever been involved in the sex trade industry in any capacity (i.e.) driver, receptionist, answering phones, street worker, etc)?

65.       Tell us about any time you may have retained, or been involved with the service of an escort agency, massage parlour, prostitutes (i.e. cruising for prostitutes, buying for friends, etc.)

66.       Have you ever had any sexual involvement with anyone without his or her consent?

67.       Has anyone had any sexual involvement with you without your consent?  If yes, provide details.

68.       Have you ever been involved in a sexual manner with a child (under the age of 16) regardless of your age?  If yes, provide details of all incidents. (Include ages of participants)

69.       Give the circumstances of your involvement in a sexual act that if you were caught, you may have been prosecuted. Provide details of all incidents. (i.e. sexual contact with an animal, exposing yourself in public, incest (sexual relations with a family member), sexually explicit anonymous phone calls, or peeked into someone’s window for sexual purposes etc.

70.       Provide details of your use of pornography.

[15]         The defendants submit that the information sought about an applicant for employment by the Transit Police force deals with a wide range of sensitive and intensely personal topics. As well, the application form also seeks to elicit identifying information about the applicant’s entire family members, including in-laws, former spouses, deceased parents, as well as character references. One can only imagine that the other two police forces likely seek answers to similar questions…

[17]         The defendants maintain that in order to succeed in her application, the plaintiff must first satisfy the court that the documents sought contain information which may relate to a matter in issue, and that the application is not in the nature of a fishing expedition, citing Gorse v. Straker, 2010 BCSC 119 at paragraph 16. As Macaulay J. said in Gorse, the formulation of this test stems from the well-known decision ofPeruvian Guano (1882), 11 Q.B.D. 55 at pp. 62-63 (C.A.) and permits access to documents that relate to a matter in issue indirectly as well as directly…

[20]         Taking into account that I have determined the documents sought relate only to a matter indirectly in issue, I have to now decide whether any of the information from the application forms is to be provided to the plaintiff.

[21]         In my view, questions 58 and 60 from the employment application form for the Metro Vancouver Transit Police, as set out above, and their answers are such as was discussed in Przybysz v. Crowe, 2011 BCSC 731 at paragraphs 27 -28, as those documents which assist in a train of enquiry as contemplated in Peruvian Guano. The others, in my view, are merely in the nature of a fishing expedition.

[22]         Accordingly, I order that the defendants provide to the plaintiff copies of the personal defendant’s applications to the three stated police forces with all answers completely redacted but for questions 58 and 60 and the answers thereto as provided by Magdaluyo, or similar equivalents in the application forms for employment by the Vancouver Police Department and the RCMP.

$150,000 Non-Pecuniary Assessment For Spine Fusion Leading To Chronic Complications

October 28th, 2013

Reasons for judgement were released this week demonstrating that not only is an at-fault motorist responsible for the injuries they cause but also for any complications that result in the course of the Plaintiff’s reasonable treatment of these.

In this week’s case (Cebula v. Smith) the Plaintiff was involved in a head on collision.  Despite denying fault the Court found there was “overwhelming and uncontradicted” evidence that the Defendant was to blame.  The crash caused multiple injuries including a fractured neck which required the removal of two discs and a fusion from C5-C7.  Following this surgery the Plaintiff experienced a bone infection in her hip and further experienced long term difficulty swallowing as a complication of the surgery.  In finding the Defendant at fault for all of these consequences and assessing non-pecuniary damages at $150,000 Mr. Justice Weatherill provided the following reasons:

[297]     On the basis of the evidence before me, I find that the plaintiff has established that the injuries she sustained to her neck, shoulders and upper back, right knee and right ankle, as well as her PTSD, sleep disturbances and anxiety were caused by the Accident.  I also find that the plaintiff’s swallowing difficulties, dizziness and voice problems were the result of her neck surgery that was itself necessitated by the Accident.  The infection in her hip at the site of her bone graft was also the result of her neck surgery.  Her headaches have been aggravated by the Accident.  It is more probable than not that these injuries and other conditions would not have occurred but for the Accident….

[301]     As a result of the Accident, the plaintiff’s life changed permanently and dramatically.  The various surgeries she underwent, the chronic pain and headaches, the long period of only partial recovery, the limitations on her mobility and her inability to continue in her teaching position has had a significant effect on both her physical and psychological wellbeing.  She has withdrawn from her social network and previous social activities.  She is short-tempered and not as much fun to be around.  Driving has become stressful and anxious for her.  It is worse when she is a passenger.  The dizziness and choking that began after her November 2007 neck surgery continue to this day.  She is unable to take care of her home and garden except for minor housekeeping tasks.

[302]     The plaintiff has become anxious and has lost confidence in her ability to be an effective teacher.  Teaching is no longer the joy that it was for her prior to the Accident.  Although psychological treatment and other encouragement enabled her to gradually return to work, she is only able to teach in the classroom one day per week.  That one day takes a toll on her such that she requires the remainder of the week to recuperate and prepare for the next work day.

[303]     The plaintiff was in obvious pain and discomfort while she was testifying.  It is clear to me that the Accident has caused her significant stress and anxiety and significantly affected her ability to function and cope with daily life, a marked change from her life prior to the Accident…

 [321]     Having considered the principles set out in Stapley and the cases relied upon by counsel, I find that an award of $150,000 for non-pecuniary damages is appropriate.

$35,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing “Significant” Muskuloskeletal Issues

October 24th, 2013

Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, assessing damages for an aggravation of pre-existing injuries.

In today’s case (Johal v. Conron) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  At the time of the accident the plaintiff had significant pre-existing issues including bilateral rotator cuff tendinitis, complex regional pain syndrome and underlying degenerative arthritis.  The collision caused soft tissue injuries which aggravated these conditions.  In assessing non-pecuniary damages at $35,000 Madam Justice Donegan provided the following reasons:

[79]         In his July 26, 2011 report, Dr. Wade opined:

The global clinical picture of Mrs. Surinder Johal is complex. It would be my opinion that she had significant musculoskeletal complaints prior to a motor vehicle accident of June 10, 2009. As a result of the accident of June 10, 2009 she had an aggravation of neck and back complaints likely because of a mild soft tissue injury of the cervical and lumbar spine. Over time she has had persistent and increasing problems in a number of areas.

It is unclear to me whether her right shoulder pathology [tear] is any way directly related to the motor vehicle accident of June 10, 2009; however her global pre-existing musculoskeletal complaints have been aggravated by the soft tissue injury of the cervical and lumbar spine as a result of the accident of June 10, 2009.

[80]         Dr. Wade fairly conceded that it is difficult to sort out the symptoms that pre-dated the accident and those that could be directly attributed to the accident. In this regard, he wrote:

In my opinion it would be a blend of both pre-accident and accident type problems that have resulted in her current state of pain and disability.

[81]         He further opined that if she would not have had the accident of June 10, 2009, and had been treated with appropriate aggressive physiotherapy to her right shoulder and upper extremity, that Mrs. Johal would have likely improved over time. I accept this opinion.

[82]         Accepting Dr. Wade’s evidence as I do, I am satisfied that Mrs. Johal has proven, on a balance of probabilities, that the defendant’s negligence caused mild to moderate soft tissue injuries to her cervical and lumbar spine. These injuries caused aggravation of her pre-existing conditions and caused new conditions in her lumbar spine and lower body…

[92]         I find she would have been disabled to some extent by her right shoulder and upper extremity problems if the accident had not occurred. However, the injuries from the accident have made her symptoms worse, slower to recover and have had a more significant impact on her life. In the unique circumstances of this case, I find that the appropriate award for non-pecuniary damages is $35,000.00.

Court Criticizes ICBC’s “Disappointing” Take On Diminished Earning Capacity Claim

October 22nd, 2013

The factors to be considered when assessing damages for ‘diminished earning capacity’ are well established in law.  Reasons for judgement were released today  by the BC Supreme Court, Kelowna Registry, addressing this and criticizing ICBC’s approach when valuing this loss.

In this week’s case (Tarasevich v.Samsam) the “plaintiff’s hips and sacrum were seriously injured in a motor vehicle accident“.  The injury was expected to pose long term problems requiring serial surgeries to address these issues in the future.   The injury caused chronic pain and impacted the Plaintiff’s working tolerance.   Despite this, ICBC argued that the long term injury will only have  a modest impact on the Plaintiff’s earning capacity because “the plaintiff was bound to become a sedentary office worker in any event and that because her physiatrist has said that despite her injuries she can engage in a full-time sedentary occupation, she will therefore not suffer a significant loss of future income“.

Mr. Justice Rogers rejected ICBC’s position and provided the following criticism:

[52]         To repeat: the defence’s approach to this head of damages is to assert that the plaintiff was going to be a sedentary office worker in any event and that because the evidence shows that she is likely to now follow that career path, she cannot be said to have suffered a loss. The defence asserts this proposition notwithstanding the uncontroverted evidence that the plaintiff’s hip and lower back injuries markedly limit her ability to do the kind of work that she actually did, and did well, before her injury.

[53]         It is disappointing that in this day and age, nearly 30 years after Brown v. Golaiy, a defendant would cleave to such a wrong-headed approach to a claim for reduction of earning capacity…

[56]         The plaintiff was a young person when she was injured. It is possible that she would have enjoyed sufficient success in retail sales and management that she would not have gone on to work in an office environment. It is equally possible that she would have taken office administration courses while still working full or part‑time and would have gone on to find employment in an office. The plaintiff’s history in the labour force was too brief to support a confident prediction of the direction her future would take. One cannot, therefore, say that the plaintiff’s loss may be calculated by measuring the delta between pre- and post-injury income streams. For that reason, I find that assessment is the appropriate methodology for this case.

[57]         The plaintiff has made a genuine effort to engage in work. She has tried and failed to work as housecleaner. She has tried and failed to work full-time in the same type of sales job she did before the accident. If the plaintiff does not pursue sedentary work but continues to work in sales or some other occupation that requires her to be on her feet for the majority of the day, I find that her stated preference for part-time work is reasonable given her symptoms and limitations. If she works part-time in a sales position, she will likely have more energy to look after her household and to participate in social activities and such recreational pursuits as she can still do. Working part-time will allow her to achieve some reasonable degree of balance between earning a living and having a life to live.

[58]         On the other hand, I find that as a result of her injuries the plaintiff’s best course of action will be to earn a Grade 12 diploma or its equivalent and then to enroll in a course of post-secondary that will qualify her for employment in an office environment. Even in an office environment, the plaintiff will be a generally less desirable employee than her able-bodied colleagues. In order to work full-time, the plaintiff will need a sympathetic employer who is willing to accommodate her limitations.

[59]         In either case, the plaintiff’s participation in the labour force will be interrupted by serial hip replacement surgeries.

[60]         For these reasons, I have concluded that the proper award for reduction of the plaintiff’s earning capacity is $250,000.

Costs for Fast Track Trials Exceeding 3 Days Discussed

October 21st, 2013

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing assesable costs when a fast track trial exceeds 3 days.

In today’s case (Peacock v. Paul) the plaintiff was involved in two collisions.  Although only one of the cases was put into the fast track the Court deemed that Rule 15 applied to both actions.  The trial took a total of 5 days.   ICBC argued that costs should be capped at $11,000 but Mr. Justice Affleck declined to do so and used his discretion to increase costs by $1,500 for each additional day of trial.  In reaching this conclusion the Court provided the following reasons:

[20]         Madam Justice Neilson held that the formula set out in Anderson v. Routbard, 2007 BCCA 193 should be applied to determine what amount should be awarded. This formula involves first determining what portion of the lump sum provided for in the Rule is for pre-trial and trial costs. Madam Justice Neilson calculated this by taking the amount enumerated for a one day or less trial and subtracting it from the amount allowed for a two day or more trial. The difference is then multiplied by the number of days that the trial went over (paras. 31, 39). She concluded:

39        I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

[21]         Similarly, this approach was used in Lam v. Chui, 2013 BCSC 1281 where the court considered the appropriate costs award in a fast track action where the trial took 13.5 days. The court held that the plaintiff was entitled to costs for 11.5 days after it deducted 2 days representing time wasted as a result of an error made by the parties concerning the date of the loan in question. Calculating the cost of a trial day at $1, 500 using the formula from Majewska, the court determined that the plaintiff was entitled to $23, 750 in costs ($11,000 for the first three days of trial and $1,500 per day for 8.5 days). The same approach was used inShiekh v. Struys, 2013 BCSC 1148.

[22]         In Coutakis v. Lean, 2012 BCSC 1447, the court considered a successful plaintiff’s claim for costs in a fast track action. The trial took five days including one day where trial did not proceed due to illness of the judge. The court held:

10        Under subrule 15-1(15), the court is given a wide discretion to order an amount of costs other than the fixed amounts set out therein. In my view, this is a case which clearly calls for the exercise of that discretion, in favour of the plaintiff. That the hearing of the evidence took three days, rather than two, was largely as a result of the defence’s cross-examination of four of the plaintiff’s treating physicians, and the defence’s tendering as opinion evidence of the consultation report of a neurosurgeon. Hearing the evidence of all of these physicians took more than three hours, and, as I stated in my judgment, all of it was ineffectual. Further time was spent hearing irrelevant evidence from the defendant.

13        Using the amounts prescribed in the subrule as reference points, I award the plaintiff base costs of $14,000, plus disbursements.

[23]         In the case at bar, the trial took two days longer than contemplated by R. 15-1(15)(c). Applying the authorities discussed above, in my view, the costs award should exceed $11,000 by adding a further $1,500 for each of the additional days of trial for a total costs award of $14,000 not including disbursements.

$85,000 Non-Pecuniary Assessment for Dental Misalignment Coupled With Soft Tissue Injuries

October 18th, 2013

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing damages for dental injuries sustained in a vehicle collision.

In this week’s case (Latek v. Krol) the Plaintiff was involved in a 2011 collision for which the Defendant accepted responsibility.  The Plaintiff suffered a jaw injury resulting in misaligned teeth and various soft tissue injuries.  He was an active individual and suffered a variety of soft tissue injuries which impacted his physical lifestyle.  In assessing non-pecuniary damages at $85,000  Mr. Justice Sewell provided the following reasons:

[6]             Mr. Latek was seen by his family doctor, Dr. Ostapkowicz, on May 25, 2011. At that time he was moving with difficulty and could hardly talk. His jaw was swollen and he was unable to chew. He complained of head and teeth ache, maxilla and jaw pain, difficulty in opening his mouth, neck pain, right and left shoulder pain, right lower back, hip and knee pain, as well as left foot pain.

[7]             Mr. Latek was examined by his family dentist, Dr. Gill, on May 25, 2011. At that time he was able to open his mouth only ten millimetres wide, as compared to a normal opening of 40-45 millimetres. Dr. Gill noted that 16 of Mr. Latek’s front teeth were loosened and significantly mobile. On a later examination on July 25, 2011, Dr. Gill observed that two of Mr. Latek’s teeth were misaligned inwardly.

[8]             Mr. Latek remains under the care of Dr. Gill for treatment of the injuries to his teeth. He currently wears braces to correct the misalignment of his teeth suffered in the accident. Once the orthodontic treatment is completed there is a possibility that Mr. Latek may require further treatment to his jaw but Mr. Latek’s prognosis is generally favourable.

[9]             Over time many of Mr. Latek’s symptoms resolved. His last recorded visit to Dr. Ostapkowicz was on December 11, 2012. On January 31, 2013, Mr. Latek attended an independent medical examination by Dr. Hirsch, a specialist in physical medicine and rehabilitation. By that time, Mr. Latek’s injuries were largely resolved except for pain in the low back, left hip and buttock and left knee. Dr. Hirsch’s opinion was that Mr. Latek’s injuries were soft tissue in nature. He found no evidence of any structural or ligamentous damage or any indication of structural injury to the spine. Dr. Hirsch characterized Mr. Latek’s lower back pain as mechanical, or pain that is exacerbated by activities and postures that stress or load the back…

[27]         Mr. Latek’s injuries, though extensive, were not severe or life threatening. He did not suffer an inordinate amount of pain from them. Most of his injuries resolved within about a year after the accident.

[28]         However, the impact of the injuries on Mr. Latek has been much more serious than they might have been on a more sedentary plaintiff. I am satisfied that much of Mr. Latek’s self-esteem and enjoyment of life were based on his physical prowess and his ability to engage in activities requiring a high level of physical fitness, endurance and strength.  Mr. Latek gave priority to those activities over the pursuit of a career in the two years before the accident.

[29]         I am satisfied that Mr. Latek’s inability to pursue his pre-accident activities is attributable to the injuries he suffered in the accident. In my view that loss has had a profound effect on Mr. Latek’s enjoyment of the amenities of life. While there is no expert medical evidence about the physiological and mental health impact of the loss of the ability to do what he did before the accident, I conclude that that loss together with his pain symptoms caused the personality changes exhibited by Mr. Latek since the accident…

[34]         Taking Mr. Latek’s injuries into account in the context of the authorities, and giving particular weight to the impact the injuries have had on Mr. Latek’s quality of life, I assess non-pecuniary damages at $85,000.

A Draw is a Loss in the World of Tort Litigation

October 17th, 2013

When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place.  In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.

In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant.  The Defendant denied the allegations in their entirety.  Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed.  In dismissing the claim Mr. Justice Melnick provided the following reasons:

[50]         In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.

Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

October 16th, 2013

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.

In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:

[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.

[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).

[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.

[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

Private “Non Urgent” MRI Cost Denied as Disbursement

October 15th, 2013

Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.

In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:

[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:

For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.

[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:

Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.

[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…

[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.

[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.

[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.

[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.

Privileged and Undisclosed Report Recoverable As Disbursement

October 11th, 2013

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.

In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision.  In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist.  The GP report was privileged in not disclosed.  ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents

District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:

[8]  I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653.  Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:

A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..

Her Honour goes on to say:

 When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done

[9]  I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable.  The disbursement is allowed as presented.

To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.