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 April, 2014

“It Is Contrary to Public Policy to Permit Contracts out of Liability for Damages for Personal Injuries” in BC Vehicle Collision Cases

April 30th, 2014

Important reasons for judgment were released today by the BC Court of Appeal confirming, in divided reasons, that it is contrary to public policy to allow a vehicle owner/operator to contract out of liability for damages for personal injuries.

In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler  BC to participate in various activities including a zip lining experience.  Transportation to and from Whistler was provided the by the Defendant.   During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“.  The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.

Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”.  The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages.  The Defendant admitted he was negligent but the waiver was upheld at trial dismissing the plaintiff’s claim.  In overturning this decision the majority of BC’s Court of Appeal provided the following reasons:

[114]     In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable. The judge erred in finding that the public policy interest exemplified in a compulsory universal insurance scheme was incapable of defeating society’s interest in freedom of contract.

 


Motorist “Darting Out Into Traffic” Fully At Fault for Subsequent Collision

April 28th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing the liability of a motorist who darts into traffic causing a cyclist to lose control.

In this week’s case (Graham v. Carson) the Defendant motorist was stopped at a commercial loading zone and the “darted out into traffic too quickly” when it was unsafe to do so.   The Plaintiff, who was travelling in the same direction, lost control trying to avoid a collision with the Defendant and subsequently drove his bicycle into a parked car causing injury to himself.  The Defendant argued the Plaintiff was the author of his own misfortune.  Mr. Justice Macintosh rejected this argument finding the Plaintiff acted reasonably in the agony of collision and that the Defendant was fully to blame.  In reaching this conclusion the Court provided the following reasons:

[8]             Having found as I have regarding the turn signal, I add that the failure to signal is not the central concern in this case.  If Ms. Carson had signalled at about the same moment she pulled out and drove into the traffic, the signal would have been of little or no assistance to anyone.  The main problem was that Ms. Carson’s car darted out into traffic too quickly.  The traffic was proceeding south on Blanshard immediately behind or beside her car when her car had been stopped in the commercial zone moments before that.  She should have waited for a safe opening in the traffic, which might have entailed waiting where she was until the light changed so as to stop the southerly flow on Blanshard before cars started south onto Blanshard from Fort Street…

[11]         Proceeding through the green light southward on Blanshard were, first, the SUV, second, the plaintiff on his bicycle, and third, Mr. Enns in his car.  The SUV, the plaintiff’s bicycle and the Enns car were thrown into disarray by the defendant driver pulling out too suddenly, immediately in front of the SUV.

[12]         I noted above that the SUV stopped before hitting the defendant’s car, but avoiding that collision was a near thing.  The SUV had to stop very quickly.  Mr. Enns veered his car toward the left; that is, toward the centremost of the southbound lanes on Blanshard, in order to avoid a collision.  Meanwhile, the plaintiff on his bike had a matter of seconds to decide what to do.  He was conscious from past experience that he risked being rear‑ended by the Enns vehicle if he stayed his course and simply braked, hoping to stop in time to avoid hitting the SUV.  Instead, he steered his bike, to the right, into what appeared as a metre‑wide opening between the stopped SUV and a car parked on Blanshard, just south of the commercial zone.

[13]         As I noted above, Mr. Graham is an experienced cyclist, and hoping to avoid injury by driving into the space between the SUV and the parked car was not unreasonable in that dire circumstance, when there was no time and little opportunity to do anything else.

[14]         Unfortunately, that escape route did not save the plaintiff.  His elbow hit the mirror of the parked car, breaking off the mirror.  That impact drove him from his bike and injured him, thus giving rise to this claim…

[16]         My view of the evidence and my resulting findings of fact lead to my conclusion that the defendant driver is fully liable for the plaintiff’s injuries.  The plaintiff was not contributorily negligent.  He acted promptly and not unreasonably in a desperate situation, which was brought about entirely by Ms. Carson’s re‑entering traffic when her car should have stayed where it was until there was a safe opportunity to proceed.


Motorist Fully At Fault Despite Being hit While Stationary

April 28th, 2014

Reasons for judgement were released last week by the BC Supreme Court, Prince George Registry, finding a motorist who was struck while stationary fully at fault for a collision.

In last week’s case (Hart v. Jackson) the Defendant lost control of his vehicle in winter driving conditions and drove into a snow bank.  A good Samaritan helped him retrieve his vehicle leaving it facing southbound in the northbound lane.  The Defendant’s vehicle’s wheel wells were packed with snow such that it could not be steered.  The Defendant spend several minutes using a ice scraper to remove the snow.  At the same time the Plaintiff vehicle was driving Northbound.  When he realized the Defendant vehicle was in his lane he applied his brakes but could not avoid the collision.

In finding the Defendant fully at fault for the crash Mr. Justice McKinnon provided the following reasons:

[15]         In my view, Mr. Jacobsen was not a credible witness. He argued with plaintiff’s counsel, dismissed the plaintiff’s expert opinion about the Kia’s woeful lack of winter readiness, and generally set himself up as an expert northern driver fully alert and ready for winter conditions.

[16]         It was somewhat telling that even the defendant’s expert engineer was critical of the defendant’s position that “all weather tires” were perfectly adequate for northern winter driving.

[17]         The defendant testified that he drove at a constant speed of 75 KPH, which clearly was too fast, given the state of his vehicle, particularly the condition of his tires. Before the collision at issue in this case, the defendant’s vehicle began to slide as it rounded the curve referred to earlier and it ended up in the snow bank off the northbound lane. A passing motorist stopped to assist and pulled him out, leaving the Kia facing southbound in the northbound lane. According to Mr. Jacobsen he was “at most a foot away from the snow bank”.

[18]         Unfortunately, the wheel wells were packed with snow and thus the Kia could not be steered. The defendant had no shovel and so was reduced to chipping away at the wheel wells with a snow scraper to free up the steering. Although his vehicle was equipped with four way flashers he did not turn these on but did have his head lights on.

[19]         He said that as he was close to completing this task, he heard a flashing or skipping noise, turned to his left and saw a silver pickup sliding toward him. He said he turned and leaped into the ditch, never taking any strides.

[20]         Mr. Jacobsen denied ever admitting to either Mr. Landolt or Mr. Hart that the collision was his fault, indeed he capped that denial by asserting that “I was parked, it wasn’t my fault”. As stated earlier in this judgment, I did not find Mr. Jacobsen to be a credible witness. I found that the plaintiff and Mr. Landolt were credible and prefer their evidence over that of the defendant Jacobsen…

[35]         Mr. Jacobsen had his Kia parked in the northbound lane facing southbound. It is not entirely clear just how much of the Kia was in the northbound lane but it was to a substantial degree such that a northbound driver like Mr. Hart could conclude he was facing an immediate hazard.

[36]         The defendant was not just momentarily parked in this hazardous position but remained there for some 15 minutes, all the while scraping away at the wheel wells with a tool not designed for such work. Thus we have a vehicle, substantially in the northbound lane with a pedestrian walking around it posing an additional hazard to northbound traffic. The Kia’s head lights were on but the hazard lights were not. Given the curve and hump, the true nature of the hazard would not be readily apparent to the driver of a northbound vehicle until he rounded the curve and was so close to the parked vehicle that a collision was inevitable…

[41]         The two experts both agree that Mr. Jacobsen ought not to have been driving on “all season” tires which they testified were completely inappropriate for northern driving.

[42]         In my view, Mr. Hart was faced with the “agony of collision” doctrine. Given the curve and hump that obscured any clear view of just where the Kia was, he could not appreciate just what hazard was facing him. By the time he was able to see that the Kia was in fact parked substantially in his northbound lane there was almost no time to react. He cannot be faulted for opting to brake as opposed to some other manoeuvre: see Soto v. Peel, 2013 BCSC 409; Ayers v. Singh (1997), 85 B.C.A.C. 307, 69 A.C.W.S. (3d) 207; and Brook v. Tod Estate, 2012 BCSC 1947.

[43]         I also accept that Mr. Jacobsen had a duty to warn oncoming motorists of the hazard he had created by at least operating his four way flashers. The better course would have been to flag the curve with emergency reflectors but he had no such equipment: see Skinner v. Fu, 2010 BCCA 321.

 


$90,000 Non Pecuniary Assessment for Suprascapular Nerve Injury

April 25th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a suprascapular nerve injury caused by a collision.

In this week’s case (Donovan v. Parker) the Plaintiff was involved in a 2009 crash.  The Defendant admitted fault.  The collision caused a nerve injury in the Plaintiff’s shoulder which resulted “in permanent damage to the infraspinatus and supraspinatus muscles of his left rotator cuff“.   In assessing non-pecuniary damages at $90,000 Mr. Justice Baird provided the following reasons:

[40]         The plaintiff is a 39 year old man who has been reduced in his physical abilities because of his injuries. His previous activities such as skiing, camping, hiking, diving, swimming, rock-climbing and water-skiing have been much circumscribed. He has been negatively affected in his ability to engage in physical activities with his children, and he has become less useful around the home that he shares with his wife and family. His mood has been affected by persistent pain. He has been noted to be short-tempered with his wife, children, co-workers and friends. The medical evidence seems clearly to establish that his injuries are permanent and that he will have to be diligent in pursuing a course of exercise and physiotherapy to maintain his present functioning.

[41]         Of the cases relied on by the defendant under this heading of damages I find Langley v. Hepner, 2011 BCSC 179, Jurczak v. Mauro, 2013 BCSC 658, Durand v. Bolt, 2007 BCSC 480 and Cimino v. Kwit,2009 BCSC 912 to be roughly analogous to the present case. The plaintiff relied on Stapley v. Hejslet, 2006 BCCA 34, Power v. White, 2010 BCSC 1084, Dycke v. Nanaimo Paving and Seal Coating Ltd. and Foster, 2007 BCSC 455, Morlan v. Barrett, 2012 BCCA 66, all of which could legitimately be argued to be analogues with the case at bar.

[42]         Based on these authorities, I conclude that an appropriate range for non-pecuniary damages in this case is between $55,000.00 and $140,000.00. Relying especially on Cimino and Stapley, which I consider to be most similar to the present case, I think a fair, just and reasonable award would be $90,000.00.

 


A Creative Sick Leave Benefits Award

April 24th, 2014

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, making an interesting award with respect to past wage loss covered by a sick leave plan.

In this week’s case (Bulpitt v. Muirhead) the Plaintiff, a firefighter, was injured in a  2007 collision.  He did not suffer an actual wage loss as “he received all of the wages he would otherwise have received had the accident not occurred as sick leave benefits to which he was entitled as an employee of the City of New Westminster“.   These benefits were subject to a subrogation agreement which was put into evidence.  The court expressed concern about whether this was a sufficient basis to make an award for past loss of wages.  Instead, the court did not award money for past wage loss but used its inherent jurisdiction to make a blanket order that the Defendant provide full indemnity to the plaintiff in respect of any amount of the judgement that the plaintiff is, or becomes, obligated to re-pay the City.  In reaching this decision Mr. Justice Weatherill provided the following reasons:

[102]     The only evidence proffered by the plaintiff during the trial in respect of a claim for past wage loss came in the form of a letter dated June 6, 2008 from a payroll clerk with the City of New Westminster to ICBC.  It states:

“Please find enclosed the completed Certificate of Earnings form for [the plaintiff].  I am also attaching a copy of the subrogation agreement from the Collective Agreement for The City Firefighters’ Union, Local 256.

The gross pay lost up to May 30, 2008 due to [the Accident] is $20,365.56.  Please be aware that his sick claim is still ongoing so this figure is not a final amount.

When a settlement has been reached, please forward to my attention the total amount of earnings lost due to this accident, plus any interest attributed to those earnings, payable to the City of New Westminster.  This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity hours that he lost due to the accident.               

[Emphasis added]

[103]     The attached “subrogation agreement” states:

Sick Leave Recovery

a) An employee may use sick leave credits for time lost through accidental injuries PROVIDED THAT prior to making a claim or commencing an action for damages against a third party in respect of such injuries, he shall notify the Employer of such claim and enable the Employer the opportunity to be represented in all proceedings or settlement discussions relating to the claim.  Any such claim shall include a claim for loss of wages including pre- and post- judgement interest, and to the extent that recovery is made, such amount will be reimbursed to the Employer.  The Employer will reimburse the employee, fifty percent (50%) of the cost of the legal fees certified by the employee’s legal counsel as being attributed to providing the wage/benefit loss claim.

[104]     During argument at trial, I expressed to plaintiff’s counsel my concern that this evidence was insufficient to prove the employer’s right to make a subrogated claim for the wage benefits it had paid to the plaintiff while he was unable to work due to his Accident-related injuries…

[108]     Regardless, it is my view that the June 6, 2008 letter and the excerpted portion of the Collective Agreement is evidence that the plaintiff’s sick leave benefits were not as they would have been but for the Accident.  Clearly, there was a benefit plan that had been negotiated by the City and the firefighters’ union the terms of which were contained in the Collective Agreement.  Further, this letter is evidence of what it will take to restore the plaintiff’s sick leave plan to its pre-Accident status.

[109]     In all cases, the court retains residual power to grant appropriate relief through its inherent jurisdiction: Anderson v. Buydens, [1998] B.C.J. No. 2675 at para.16 (S.C.).  In this case, a miscarriage of justice would result if the plaintiff was awarded nothing for past wage loss because he received benefits from his employer yet the employer was able to “claw back” those same benefits by way of a right of subrogation.  I am satisfied that there ought to be a provisional award for past wage loss in this case.  The plaintiff is entitled to full indemnity from the defendants in respect of any amount to which the plaintiff is or becomes obligated to re-pay to the City of New Westminster in respect of benefits he received as a result of the Accident.

 


Principled Exception to the Hearsay Rule Fails to Save Mystery Witness Statement

April 23rd, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.

In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006.  His motorcycle struck the pup trailer of a dump truck.  This resulted in profound injuries which required an above knee amputation for the Plaintiff.

The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision.  In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events.  In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it:

 [61]         Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility…

[64]         Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists.

[65]         In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her.

[66]          Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others.

[67]         The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. 

[68]         The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror.

[69]         Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle.

[70]         For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.

 


Disbursement Interest Claim Allowed at 6%

April 22nd, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, allowing a Plaintiff to recover interest charged on a loan which financed disbursements.

In today’s case (Phippen v. Hampton) the Plaintiff sued for damages following a personal injury.  In the course of the claim the Plaintiff borrowed funds from a company associated with the lawfirm she hired to advance her personal injury claim.  This loan was for disbursement funding and the lender charged interest at 15%.  The Court was satisfied that the loan was needed but reduced the recoverable interest to 6%.  In reaching this conclusion District Registrar Cameron provided the following reasons:

[2]             I am satisfied based upon the Affidavit evidence provided by Ms. Phippen, that she has established that her financial situation was such that it was necessary and proper for her to seek out financing for the disbursements that needed to be incurred to pursue her claim…

[5]             Mr. Mullally goes on to say — and I do not find this to be controversial — that it is difficult for most clients who have suffered a personal injury to finance the necessary disbursements that must be incurred to advance their case.

[6]             In passing, of course, this highlights the need for contingency fee agreements that allow for access to justice and alongside that disbursement loan arrangements, if they can be accommodated by the law firm or arranged by the law firm also help with that same purpose in mind…

[12]         Turning to the circumstances of this case, Ms. Phippen was charged an interest rate of 15 percent by PIL.

[13]         In Chandi, supra, Mr. Justice Savage said that the Registrar must consider the entire context of the arrangement.  In this case — and I refer back to Mr. Mullally’s evidence — while the law firm did not itself lend the funds necessary for the disbursements to the Plaintiff, a company that the law firm or members of the law firm had a controlling interest in provided that assistance.

[14]         Looking at the matter contextually I find that the law firm was not arm’s length from the lender, PIL. This was properly conceded by Plaintiff’s counsel. In this case, the law firm arranged the necessary loan for the Plaintiff that provided for a profitable rate of interest to the lender. In the current economic climate, I am not satisfied that an interest rate of 15 percent is reasonable to pass along to the Defendant, and as Master McDiarmid and Master Young have done in the decisions I  have referred to, I will award a rate of six percent.

 


Assumed Future Fact Scenarios Are OK In Economic Expert Reports

April 22nd, 2014

Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing the appropriateness of assumed future fact scenarios in an economists report.  In short the Court held that such assumptions could be laid out in the body of a report.

In the recent case (Hill v. Murray) Mr. Justice Macaulay provided the following comments on this topic:

[7] In Sacilloto v. Crossman (1990), 49 B.C.L.R. (2d) 375 (S.C.), the defence objected to an economist’s report that set out various possible scenarios for the expected earnings of the plaintiff, based on the assumption that he had not been injured in the accident, along with further scenarios for possible earnings after the accident.
[8] The court pointed out that many of the assumptions underpinning the report were at issue in the trial and, as a result, it would be impossible for counsel or the economist to rely on one assumption as to facts. The court considered the use of several scenarios to be in harmony with the fact that there were a number of live issues at trial. On admitting the report, the court stated:
(12) I am left with the impression that the author of the report has endeavoured … to tie the statistical data to the various possible scenarios that I may find or may not find applicable to the plaintiff. In doing so, he has endeavoured to mould the report to the likely evidence scenarios before the Court. That opinion evidence to me is useful evidence. It provides me with materials which, from my general experience both before and after coming to the Bench, I would not otherwise have.
(13) The case here is not a simple looking ahead for someone who has worked for many years and has established his working pattern in life. …
(14) Here, I am dealing with a young man who is embarking upon a working career, who on the evidence … was in a state of flux as to what he would do in the future … The type of evidence that has been put before me is such that I could not from my own experience pluck it out of my mind and arrive at reasonable estimates as to what might lie ahead depending on the findings of fact that I make.

Although this case suggests that admissibility may depend on the complexity of the calculations involved and the uncertainty of the future options for the plaintiff, the use of the scenarios does not in itself render the material inadmissible.
[9] Finally, the Court of Appeal implicitly improved the admission and use of such expert opinion material in Jurczak v. Mauro, 2013 BCCA 507. In that case, the economist provided an expert opinion on loss of earning capacity based on two sets of assumptions arising out of the plaintiff’s pre-accident work history and proffered scenarios in each case.
[10] Although the Court of Appeal overruled the trial judge’s approach to determining future loss of earning capacity, the court commented, “if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them.” A failure to do so may result in a wholly erroneous estimate of the damages (both at paragraph 37).

[11] In this regard, I am satisfied that the sections of the reports and tables to which the defendant objects in the present case are admissible.

To my knowledge these reasons for judgement have not yet been publicly published but, as always, I am happy to share a copy with anyone who contacts me and requests them.

 


Expert Witness Judicially Drubbed for Showing “a Lack of Willingness to Be Frank, Open and Honest With The Court”

April 17th, 2014

In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.

In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision.  The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries.  In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments:

 [1]             This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court…

[75]         Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief.

[76]         During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court.

[77]         Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so….

[82]         In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian.

[83]         In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.

 


Negligence Claim Dismissed Following Vehicle / Sled Collision

April 16th, 2014

Reasons for judgement were released today (Scott v. Brown) by the BC Court of Appeal addressing motorist liability following a vehicle collision with a two children who were “riding their sled westbound on 4th Street (in Nakusp, BC) down a gentle slope.“.   The Defendant motorist was driving eastbound.  It was “snowing heavily and visibility was poor“.     The trial judge found that while the vehicle, travelling with its lights on, should have been visible to the Plaintiffs they may not have been visible to the Defendant with sufficient time to react.  The claim was dismissed.  In upholding this result the BC Court of Appeal provided the following reasons:

30]         Visibility was the most contentious issue. The trial judge found that the truck’s headlights would have been visible to the girls when they were on the dark hill and that there was no explanation for why they did not see the truck approaching. Mr. Brown testified that visibility was limited to 100-200 feet. He also testified that the light from his headlights projected 100-200 feet. He kept them on dim, as high beams reflected brightly off the snow. He could see streetlights several blocks ahead, but he could not see anything in between them. Critically, as he passed under a streetlight, the downward light reflected off the snow and made it difficult to see. He described his vision was blanketed, a whiteout, some of the worst conditions he had ever seen. Mr. Brown testified that he did not see the sled until he was halfway through the streetlight just west of the intersection. The trial judge found that if Mr. Brown was travelling 47 kph and visibility was 100 feet, he would not have been able to stop when an object came into view. However, he would have been able to stop in time if visibility was 200 feet. The trial judge found that it was not possible to determine which estimate of visibility was more accurate. The trial judge weighed the evidence and found she was unable to establish Mr. Brown was driving too fast for the road conditions. The plaintiffs had not met their burden. ..

32]         The evidence was unsatisfactory. The trial judge was alive to the “paucity of the evidence and its obvious frailties” (para. 95) and the difficulty faced by Ms. Armstrong and Ms. Scott in the circumstances as they bore the burden of proof. 

[33]         At the end of the day, the trial judge could not decide the very issues that had bearing on negligence. She could not say Mr. Brown was driving too fast for the road conditions having regard to all the circumstances. There was insufficient evidence to make key findings. She decided the case on the basis of who bore the burden of proof. The appellants failed to prove their case.

[34]         I find the trial judge made no palpable and overriding errors, and did not misapprehend evidence regarding visibility and speed. I would dismiss the appeals.