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 June, 2014

BC Court of Appeal Summarizes Test for Asserting and Proving Litigation Privilege

June 30th, 2014

The BC Court of Appeal released reasons for judgment today providing a concise summary of what is needed to succeed in asserting a litigation privilege claim.

In today’s case (Gichuru v. British Columbia) the Court was asked to address whether various documents were properly withheld due to claims of litigation privilege.  The BC Court of Appeal noted that the following test must be met to justify such a claim:

Madam Justice Gray then proceeded at para. 94, and following, to usefully describe the type of information necessary to sustain a claim of privilege. (Keefer Laundry concerns discovery of documents in a civil suit but the principles discussed by Gray J. are equally applicable to s. 14, the issue under consideration here.) I would adopt her comments as follows:

[96]      Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed:

1.               that litigation was ongoing or was reasonably contemplated at the time the document was created; and

2.               that the dominant purpose of creating the document was to prepare for that litigation.

(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.)

[97]      The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola [(1991), 62 B.C.L.R. (2d) 254])

[98]      To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[99]      The focus of the enquiry is on the time and purpose for which the document was created. Whether or not a document is actually used in ensuing litigation is a matter of strategy and does not affect the document’s privileged status. A document created for the dominant purpose of litigation remains privileged throughout that litigation even if it is never used in evidence.

[33]         In Stone v. Ellerman, 2009 BCCA 294, Chief Justice Finch speaking for the Court, suggested that where the claim is litigation privilege rather than solicitor-client privilege, the description necessary to validate the claim to privilege must be more detailed. At para. 27 he held:

[27]          Some authority supports the proposition that where the privilege claimed is not solicitor-client privilege but rather litigation privilege, as in this case, the premium placed on protecting the information is lower and the description must be more detailed to facilitate challenge. In Hetherington v. Loo, 2007 BCSC 129, Master Caldwell distinguished Leung v. Hanna [(1999), 68 B.C.L.R. (3d) 360 (S.C.)] on the basis that it dealt exclusively with solicitor-client privilege. He reasoned as follows:

[8]        …The present case deals with a claim of privilege based upon the “dominant purpose of litigation” test and protection. While information such as the date and author’s identity may well be protected from disclosure under a claim of solicitor-client privilege, such protection is not necessarily afforded claims of privilege based upon the dominant purpose test. The latter protection is less absolute, more fact driven and subject to challenge. In the recent case of Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, Fish J. said at [paragraph] 60:

the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.

[9]        And at [paragraph] 61:

While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.

[10]      In order that proper assessment may be made as to the propriety of a claim of litigation or dominant purpose privilege it is necessary that sufficient particulars of the documents be given. In most cases dealing with documents involving adjusters files and certainly in this case, particulars as to date and author must be provided. When dealing with interview notes, transcripts, and statements, it may also be necessary to identify if not the actual subject, at least the category of subject (e.g. eyewitnesses, home-care worker, etc.) involved.

[Emphasis added by Finch C.J.B.C.]

 


$65,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries Following Four Collisions

June 27th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries following multiple collisions.

In today’s case (Jiwani v. Borodi) the Plaintiff was involved in four collisions.  He was not at fault for any of these.  The initial collision caused soft tissue injuries to his neck and back.  The back injury was aggravated by some of the subsequent collisions and his symptoms lingered to the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Sigurdson provided the following reasons:

[45]         I conclude that the neck problems and the headaches resolved within about six months of the first accident, and that the back pain continues to some degree now five years after the first and most significant accident. 

[46]         I find that the back pain is soft-tissue related and has affected the plaintiff’s mood, his ability to sleep, and to some degree, his disposition and in turn his relationship with his family and friends, including his nephew.  I think that the accident has had an impact on the plaintiff’s family and social life and restricted the pleasure he had received from his friends and family in the past.  The burden is on the plaintiff to prove the extent of his injuries.  While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[47]         That said, I am not persuaded that the plaintiff is completely pain free.  I think that the plaintiff would benefit, as suggested by Dr. Grypma, from an active rehabilitation program. ..

52]         Given my findings and after considering the authorities relied upon by the parties and the factors mentioned in Stapley, the plaintiff is entitled to the sum of $65,000 for non- pecuniary damages.


Pursuing “Unproductive Trains of Inquiry” Fatal in Request for Further Examination for Discovery

June 26th, 2014

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the Court’s discretion to allow a party to conduct an examination for discovery beyond the 2 hour cap called for in Fast Track proceedings.

In today’s case (Henneberry v. Humber) the Plaintiff sued for damages following a collision.  The Plaintiff was examined for discovery for the full two hours allowed under the fast track.  The Defendant brought an application for further time but the court dismissed this finding the examination that was conduced pursued “unproductive trains of inquiry“.  In reaching this conclusion Mr. Justice Romilly provided the following reasons:

[3]             Counsel for the defendant in this particular case indicates there are many reasons for that. It is a complicated case, liability is in issue, and the plaintiff refused to sign a notice to admit certain facts which could have shortened the length of this examination for discovery.

[4]             Counsel for the plaintiff has taken me through the examination for discovery and pointed out many instances where counsel for the defendant has squandered the opportunity to fully take advantage of this two-hour limit that was placed upon these proceedings.

[5]             Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case ofMore Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:

[12]      The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.

[13]      As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:

A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.

[6]             In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.

[7]             I am not satisfied that this is a case where I should exercise my discretion to give any further time for further examinations for discovery. The application will be dismissed. Thank you.

 


The “Acceptable Practice” For Taking Pre-Trial Witness Statements

June 25th, 2014

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.

In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.

The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:

[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.

[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…

[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.

[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.

[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.

[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.


$140,000 Non Pecuniary Assessment for Brain Injury With Lingering Post Concussive Symptoms

June 24th, 2014

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a brain injury caused by a collision.

In today’s case (Curtis v. MacFarlane) the Plaintiff suffered a brain injury in a 2006 assault when he was struck with a baseball bat.  He was then involved in a 2009 collision where he sustained further head trauma.  The Defendant motorist tried to blame the Plaintiff’s deficits on the previous assault although the Court found the collision indeed caused a head injury with prolonged post concussive issues.  Prior to assessing damages Mr. Justice Crawford provided the following useful comments regarding head injury litigation:

[1]             The human brain is approximately three pounds of jelly containing more than 100 billion neurons and more than 100 trillion synapses. Our knowledge of its workings has vastly increased in the last 50 years, but man knows more of the universe than the workings of the human mind.

[2]             Only recently has the sporting world come to grips with the reality that splendid, strong athletes whose brain gets shaken up are in fact sustaining irreparable brain damage, revealed not only by the changes in the athlete’s performance and behaviour, but the ghastly findings of the autopsies upon the athlete’s death.

[3]             In the context of motor vehicle accident litigation, I have heard lawyers move from “emotional overlay” to describe the changed behaviour of their clients, to the realization that brain injury is unchartered territory, sometimes susceptible to a medical finding or organic damage that may show on an MRI, but more often diagnosed by behavioural changes of the client. The difficulty facing the finders of fact listening to learned medical professionals is pinpointing what got damaged, how that damage affects the working of the brain and the behaviour of the client, and how those behavioural, cognitive, and intellectual changes can be treated. Those difficulties simply reflect the fact that medical and scientific research is in a very early stage of finding out how the human brain works.

[4]             The dilemmas in the litigation context are many, particularly when there is testimony of memory loss and the plaintiff answers many questions with answers such as “I can’t remember” or “I can’t say when”…

In assessing non-pecuniary damages at $140,000  Mr. Justice Crawford provided the following reasons:

[728]     I am satisfied that Mr. Curtis had made a full recovery from the effects of the bat injury as clearly demonstrated by the witnesses who spoke of his daily life before  the car accident; his 2007 visit to Greece; and his training, competition and coaching in 2008. All of that evidence speaks to a fit, strong and healthy young man as of January 2009.

[729]     The subsequent concussion symptoms, ongoing depression, and anxiety led to a downward spiral through 2009 and 2010. He has had some improvement since seeing Dr. Ancill in December 2010 but the evidence is clear that the hardworking, energetic, calm, upbeat, and outgoing Mr. Curtis has become reclusive, dull, lethargic, moody, anxious and easily agitated.

[730]     I found a large amount of Mr. Curtis’ self-worth is bound up in his physical strength and Brazilian jiu-jitsu fighting competitions. That self-worth has been lost, but he maintains his love of his sport and his wish to continue to contribute to it.

[731]     Financially, however, it was not rewarding.

[732]     His cognitive defects or deficits; his loss of fighting abilities; and his decreased affection and libido all severely compromise his enjoyment of life.

[733]     I read the cases both sides submitted and no two cases are alike.

[734]     One stark factor in some of the plaintiff’s cases shows what I would call a fighting ability – i.e., a demonstrated wish by a young athletic person to try and fight to regain their previous abilities. The depression found by all experts is perhaps the explanation for Mr. Curtis’ failure to try to rebound, to bring his fighting qualities to restoring his life…

[736]     It is Mr. Curtis’s misfortune that he did not have that initial intellectual capital that has made it more difficult to see a forward path, an issue that Dr. Ancill will have to deal with directly, through psychological and psychiatric therapies and medications as he deems appropriate.

[737]     In the circumstances, I set general damages at $140,000.


Proving Fault After A Transit Bus Collision – The Reverse Onus

June 23rd, 2014

If you are injured while a passenger in a transit bus British Columbia law requires the bus driver to prove they were not at fault.  This is a ‘reverse onus’ from most personal injury claims where the Plaintiff must prove the Defendant was at fault.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this.

In last week’s claim (Tchir v. South Coast British Columbia Transportation Authority) the plaintiff was riding as a passenger in a bus “when an unidentified driver came to an abrupt stop in front of the bus“.  The bus driver was forced to brake hard to avoid collision and the Plaintiff was thrown from her seat and injured.

The Court found both motorists were to blame for the incident.  In discussing the reverse onus in proving fault, Mr. Justice Davies provided the following summary of the law:

[38]         The standard of care owed by the Transit Defendants to Mrs. Tchir as a passenger is a high one. Also, once it is proven that a passenger is injured while riding on a public transit vehicle, a prima facie case of negligence is made out and the onus then shifts to the carrier to establish that the injuries suffered by the passenger occurred without fault on the carrier’s part.

[39]         Those principles were summarized by McLachlin J. (as she then was) in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at pages 3 and 4 as follows:

There is little dispute as to the legal principles applicable in this case. The standard of care imposed on a public character is a high one. This standard has been established in the Supreme Court of Canada decision Day v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page 439 of that report of that case Davis, J. said:

·        ” The duty of the respondent to the appellant, its passenger, was to carry her safely as far as reasonable care and forethought could attain that end.”

·        At page 441 Hudson, J. in an oft-quoted passage, stated:

·        ” Although the carrier of passenger is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”

These, and other cases, establish that once an accident occurs and a passenger is injured, a prima facie case in negligence is raised and the onus shifts to the public carrier to establish that the passenger’s injuries were occasioned without negligence on the company’s part. The question then is: What suffices to discharge this onus?

[40]         Concerning the last question posed, McLachlin J. went on to say:

This has been considered in at least two British Columbian cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May 31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the latter case, at page 8, Taylor, J., set out what the defendant must show to discharge the onus upon it in the following terms:

·        ” Thus there is in this case an onus on the defendants to show that the plaintiff came by her injury without negligence on their part or as a result of some cause for which they are not responsible. That is to say they must show that the vehicle was being driven carefully at the time of her fall, or that her fall resulted from some cause other than the manner in which the bus was being driven.”

[41]         Also instructive on the issue of the standard of care expected of the Transit Defendants in this case is the decision of Dardi J. in Prempeh v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she wrote:

… The standard of care owed to a plaintiff passenger by a defendant bus driver is the conduct or behaviour that would be expected of a reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver and anything the defendant driver knew or should have known: Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma v. Clarke, 2009 BCSC 1069 at para. 6.

 


Low Velocity Impact Strategy Judicially Rejected

June 20th, 2014

Adding to this site’s archived judicial commentary on low velocity impact claims, reasons for judgement were released this week addressing and dismissing evidence seeking to minimize an injury claim based on the severity of the force of impact.

In this week’s case (Dunne v. Sharma) the Plaintiff sued for damages as a result of two collisions.  She alleged both physical and psychological consequences following these collisions.  The Defendant argued that any injuries the collisions caused were relatively minor as the collisions were modest.  In support of the Defendant’s argument accident reconstruction evidence was introduced which discussed the forces of the collision.  In rejecting the Defendant’s argument Mr. Justice Williams provided the following reasons:

[90]         Dealing first with the low velocity and minimal material damage aspect, I note that the defendants have tendered a report prepared by an engineer with expertise in the field of accident reconstruction. The essence of his opinion is that in each of the subject collisions, the velocity change experience by the plaintiff’s vehicle was probably less than about 12 km. per hour. The photographs contained in his report also demonstrate that the damage done to the cars by the collision was quite modest.

[91]         I appreciate that to have to been the case and I accept that common sense might generally dictate that a minor collision would not be expected to result in significant injuries. However, there is simply no basis upon which I am able to extrapolate the information concerning the velocity of the collision to a conclusion that the plaintiff’s injuries must therefore necessarily be of a certain type and degree. As has been judicially observed in a multitude of cases, the court cannot conclude that because the impact of the collision was relatively minor, then any resulting injuries must necessarily be minor as well. Justice Thackeray noted in Gordon v. Palmer (1993), 78 B.C.L.R. (2d) 236, 38 A.C.W.S. (3d) 924 (S.C.):

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court. Objectivity is thus preserved and the public does not have to concern itself with extraneous philosophies that some would impose on the judicial process.

The magnitude of the collision is one factor the court will take into account, but it will be considered in the totality of the evidence. Generally, its effect with respect to determination of resultant injuries will not be great.

 


BC Supreme Court Comments on Expert Report “Appendices”

June 18th, 2014

Sometimes expert witnesses attach lengthy appendices to their reports setting out the materials they have reviewed or interview summaries.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this practice.

In today’s case (Maras v. Seemore Entertainment Ltd) a variety of expert reports were challenged prior to a lengthy jury trial.  The Court struck several reports and in doing so provided a good overview of the law addressing admissibility of expert reports at paragraphs 9-20 of the reasons.  In addressing the issue of expert report appendices Mr. Justice Abrioux provided the following comments:

[29]         As outlined in Rule 11-6(1)(e) and (f), an expert’s report should clearly delineate between “facts and assumptions” and “opinion”. To the extent there is information in an appendix that is a fact or assumption upon which an expert relies, then that should be contained in the “facts and assumptions” section of the report itself. Likewise, to the extent an appendix contains an opinion, then that should be set out in the “opinion” section of the report. Generally speaking, appendices to the report should be streamlined, and only include what is necessary for the formulation of the expert’s opinion and/or the facts and assumptions upon which it is based.

[30]         An appendix containing summaries and comments, to the extent that it does not contain an opinion or underlying facts and assumptions, is no more than a working paper which does not need to be included in the report itself. It should remain in the expert’s file, which is producible pursuant to Rule 11-6(8). As with any other document forming part of the expert’s file, it can be the subject of cross-examination.

[31]         In deciding the threshold question of admissibility, I am also of the view that there is some assistance to be obtained from decisions of this court or administrative tribunals which consider the reasonableness of an expert’s fee on an assessment of costs. Although I recognize that the purpose of the analysis is different, the underlying issue is similar, that is, the necessity of the expert’s report and its assistance to the trier of fact.

[32]         In that regard, there have been many instances in which Registrars or Masters of this court, when considering whether the amount charged by an expert is properly payable by the opposing party, have commented as to whether the charges were reasonable in the circumstances. Experts’ charges have been disallowed or reduced for a variety of reasons, including when the expert’s report contained improperly extensive narrative: Wheeldon v. Magee, 2010 BCSC 491 at paras. 20-29; Bodeux v. Tom, 2013 BCSC 2327 at paras. 20-23.

[33]         Certain British Columbia Workers’ Compensation Appeal Tribunal (“WCAT”) decisions have also discussed the usefulness, or lack thereof, of lengthy appendices to expert reports. These comments appear within the context of WCAT’s discretion to order reimbursement for expert reports on the basis of a “reasonableness” analysis. For example, in WCAT-2013-02657 at paras. 75-85, it was said:

[85]      In summary, although Ms. Gallagher’s report was helpful in my deliberations, and it was reasonable for the worker to obtain it, I find the reasons for its expense to be inadequate. The appendices to the report detailing the worker’s test results were not helpful to lay person. This information is summarized (or should be) in the body of the report. A summary of the evidence contained in the appendix, again, is not useful or appropriate considering it is on the claim file, and in the body of the report. …

[Emphasis added.]

Similar examples commenting on the reasonableness of lengthy appendices include WCAT-2012-01770 at paras. 105-107, and WCAT-2012-02617 at paras. 53-58.

[34]         In a decision rendered since my oral ruling in this case, Madam Justice Russell recently summarized the law in this province regarding the scope of disclosure of an expert’s file pursuant to Rule 11-6(8): Conseil scolaire francophone de la Colombie-Britannique v. British Columbia (Education), 2014 BCSC 741 at paras. 25-51 [CSF]. After a thorough review of the relevant jurisprudence, she held:

[41]      With regard to the scheme of the R. 11-6(8), I note that R.11-6(8)(a) enumerates a number of documents that must be served on a requesting party immediately, namely written statements or statements of facts on which the expert based his or her opinion; records of independent observations made by the expert in relation to the report; data compiled by the expert in relation to the report; and the results of any tests conducted by the expert or inspections conducted by the expert.  Rule 11-6(8)(a) thus already requires production of the observations and analysis underlying the expert’s opinion.  Rule 11-6(8)(b) should therefore be read as requiring production of something more than the underpinning of the report.

[44]      My interpretation of R. 11-6(8)(b) thus takes a middle road between the broad scope of disclosure at common law and the narrow view asserted by the plaintiffs.  As I see it, on request pursuant to R. 11-6(8)(b), an expert must produce the contents of the expert’s file that are relevant to matters of substance in his or her opinion or to his or her credibility unless it would be unfair to do so.

[Emphasis added.]

[35]         The CSF decision, in my view, supports my conclusion that an expert’s report should be limited to the requirements set out in Rule 11-6(1). To the extent the recipient of the report requires production of further documents, then he or she is to follow the procedure in Rule 11-6(8).

[36]         I would add that if a party seeks production of the contents of the expert’s file earlier than the 14 days before trial provided for under Rule 11-6(8)(b)(ii) and meets resistance in that regard, this could form the basis for a disclosure application at a trial management conference pursuant to Rule 12-2(9)(q).


$55,000 Non-Pecuniary Assessment for Chronic Bursitis

June 17th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.

In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:

[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.

[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.

[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…

[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.

 


$120,000 Non Pecuniary Assessment For Chronic Myofacial Pain Syndrome

June 16th, 2014

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries which developed into a chronic myofascial pain syndrome.

In today’s case (Kirkham v. Richardson) the Plaintiff was involved in a 2010 collision.  She was 26 years old at the time and was pursuing a PhD and competed as a professional triathlete.  She sustained soft tissue injuries which impacted her education and training.  Her symptoms lingered to the time of trial and were expected to continue.  The injuries were complicated by a subsequent bike collision although the Court was able to divide the injuries from the separate incidents. In assessing the collision related injuries at $120,000 Madam Justice Warren provided the following reasons:

[182]     In summary, and having taken into account all the evidence, I make the following findings:

·       Ms. Kirkham suffered soft tissue injuries to her neck, shoulders and upper back as a result of the car accident.

·       Those injuries have resulted in myofascial pain syndrome, cervical facet arthropathy, and chronic pain syndrome, all of which continue to affect Ms. Kirkham.

·       Ms. Kirkham suffered a concussion and abrasions in the bike crash which are divisible injuries for which the defendant is not liable.

·       Ms. Kirkham did not exacerbate or aggravate her soft tissue injuries in the bike crash and the bike crash did not contribute to Ms. Kirkham’s myofascial pain syndrome, cervical facet arthropathy, or chronic pain syndrome.

·       Ms. Kirkham’s soft tissue injuries and the concussion she suffered in the bike crash both resulted in deconditioning that, in turn, caused Ms. Kirkham’s left hip girdle pain, which is an indivisible injury.

·       Ms. Kirkham took a leave of absence that delayed the completion of her PhD studies by a year. The leave was required for Ms. Kirkham to focus on rehabilitation of the injuries caused by the car accident. The concussion did not contribute to Ms. Kirkham’s leave of absence from her PhD studies.

·       As a result of the concussion, Ms. Kirkham did not compete in any triathlons during the summer of 2011. The concussion and the soft tissue injuries both contributed to her decision not to compete in any triathlons over the rest of 2011.

[195]     Having regard to the case law cited and the Stapley factors, I assess Ms. Kirkham’s non-pecuniary damages at $130,000, but reduced by $10,000 to reflect the possibility that the deconditioning associated with the concussion would have caused her hip pain in any event.