ICBC Law

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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

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Archive for December, 2016

$175,000 Non-Pecuniary Assessment For Fibromyalgia and Somtatic Disorder

December 28th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychiatric injuries caused by a vehicle collision.

In today’s case (Kim v. Lin) the Plaintiff was involved in a 2007 collision the Defendants admitted fault for. She suffered soft tissue injuries and eventually developed fibromyalgia and a somatic disorder.  In assessing non-pecuniary damages at $175,000 Mr. Justice Sewell provided the following reasons:

[128]     I am satisfied, based on all of the evidence that I accept, that Ms. Kim has suffered soft tissue injuries to her back and SI joints as a result of the Accident, which have caused her considerable pain and discomfort. I am also satisfied that as a result of a combination of Ms. Kim’s physical pain and her personal circumstances, Ms. Kim developed the psychiatric disorders diagnosed by Dr. Shane and the fibromyalgia and chronic pain syndrome diagnosed by Dr. Krassioukov.

[129]     I find that Ms. Kim would not have developed the psychiatric and somatic disorders diagnosed by Drs. Shane and Krassioukov but for the injuries she suffered in the Accident. I therefore find that there is a substantial connection between the tortious conduct of the defendants and the damages and injuries from which Ms. Kim suffers.

[130]     I also find that there is no credible evidence that at the time of the Accident Ms. Kim was suffering from a pre-existing condition that would have had an adverse effect on her future health or capacity. I therefore find that there is no basis for making any deduction from her damages based on any substantial possibility that her health or capacity would have declined in any event…

[152]     In this case, I am satisfied that Ms. Kim’s disability is permanent, in the sense that it is more probable than not that she will continue to suffer from the injuries caused by the Accident for the foreseeable future. Ms. Kim has, however, not suffered any degree of cognitive impairment. The evidence does indicate that there has been some improvement in her overall condition since she moved to Nanaimo and that she has benefitted from counselling with Miyoung Cho, a Korean-speaking psychologist.

[153]     Taking all of the circumstances into account, I assess non-pecuniary damages at $175,000.


$70,000 Non-Pecuniary Assessment for “Permanent Worsening” of a Chronic Pain Condition

December 28th, 2016

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.

In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.


Court Critical of “Uninformative” Trial Briefs

December 16th, 2016

Reasons for judgment were published today by the BC Supreme Court, Nanaimo Registry, with critical comments about “uninformative” trial briefs.

In today’s case (Kirk v. Nanaimo Literacy Association) the parties wishes to dispense with an otherwise mandatory trial management conference and asked the court to waive the hearing.  In refusing to do so the Court was critical of the trial briefs filed and provided the following comments:

[6]             Both parties state in their trial briefs that they expect the trial to be completed within the scheduled time. Yet I don’t know on what basis that assertion could be made because the total time estimates for witnesses and submissions in the two trial briefs exceeds the time set for trial by almost two days. Again, perhaps the trial was rescheduled for more days, but I have not been given any trial briefs reflecting that.

[7]             Further, the trial briefs do not indicate that counsel have fully considered all matters that might usefully be explored at a TMC. For example, the plaintiff’s trial brief, after listing the witnesses to be called, states:

The filing party may call further witnesses to address any outstanding documentary hearsay concerns which the parties are unable to resolve prior to trial.

[8]             If there are unresolved issues about admissibility of documents, particularly if it is going to affect the number of witnesses to be called, that is an issue to be explored at the TMC and the parties are not ready for trial within the meaning of R. 12-2(3.6).

[9]             Under the category of “Admissions”, the plaintiff’s brief says the plaintiff will admit that:

A document which conforms to the requirements set out in the Evidence Act, RSBC 1996, C. 124, s.42 is admissible as prima facie proof of any fact otherwise provable through direct oral evidence.

[11]         Thus, the purported “admission” by the plaintiff amounts to no more than a statement that the law of British Columbia applies to this case. That does not assist the Court in determining what facts will or will not be at issue in trial. I assume there are documents that qualify as business records under the Act, that certain facts stated in them are relevant to the issues in this case and the plaintiff is admitting or not disputing those facts. If that is the case, a party who wishes to be excused from attending a TMC must set out what those admitted facts are.

[12]         The defendant’s trial brief is equally uninformative on this issue. It simply says that the facts the defendant will admit will be “determined prior to trial date”.

[13]         Clearly, as of the date they wrote their trial briefs, counsel had not clearly turned their minds to or discussed the question of what facts could be admitted. Counsel who do not make that effort cannot expect to be excused from attending a TMC.

[14]         Under the heading of “Authorities”, both parties simply state they do not expect a joint brief of authorities at trial. That is not sufficient. The trial brief asks counsel to refer to authorities in order to identify the legal issues that will be argued at trial and in order to satisfy the Court that the parties and counsel have considered the law as it may affect their position at trial. That does not mean counsel need to cite every case they may wish to refer to at trial, but by the time they start preparing trial briefs, counsel should have identified the most important ones.

[15]         This is a wrongful dismissal case, so counsel should by now be familiar with the leading cases in that area as well as any others that are particularly relevant, such as by virtue of comparable facts. Those should have been referred to in the trial brief.

[16]         In short, the trial briefs submitted are largely pro-forma documents that do not give the Court confidence that all issues have been addressed or that all potentially useful discussions between counsel have taken place. The application to dispense with the TMC is therefore dismissed.


$175,000 Non Pecuniary Assessment for Fractured Pelvis and Psychological Injuries

December 12th, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries caused by a two vehicle collision.

In today’s case (Kweon v. Roy) the Plaintiff was a passenger in a 2010 collision.  Both motorists were found liable for the crash. The Plaintiff suffered multiple fractures to her pelvis, a mild traumatic brain injury, and depression linked to her physical injuries.  In assessing non-pecuniary damages at $175,000 Mr. Justice Skolrood provided the following reasons:

[179]     The evidence is uniform that Ms. Kweon suffered multiple fractures to her pelvis as a result of the accident, which were initially totally disabling. While the fractures have healed, the evidence also establishes that Ms. Kweon is likely to continue to experience pain in her pelvic and lower back areas into the future, which would disable her from any occupation involving heavy labour.

[180]     Ms. Kweon also suffered soft tissue injuries to her neck and shoulders. Dr. Kim noted that these injuries have progressed well, although Ms. Kweon continues to experience periodic pain. Part of the problem is the fact that Ms. Kweon has not engaged in an active rehabilitation program and I agree with Dr. O’Connor that there is an element of deconditioning. I also agree with Dr. Leith that these injuries are likely to resolve and will not result in any long term disability.

[181]     With respect to Ms. Kweon’s psychological condition, I accept the evidence of Drs. Cameron, O’Connor and Wilkinson that Ms. Kweon likely suffered a mild traumatic brain injury (MTBI) in the accident, however I also agree with Drs. O’Connor and Wilkinson that any ongoing cognitive issues are related to her psychological issues rather than any lingering impacts of the brain injury.

[182]     On this point, there is not a great deal of difference in the opinions of the two psychiatrists, Dr. Patton and Dr. O’Shaughnessy. Both agree that Ms. Kweon has experienced a major depressive disorder. While they disagree about whether Ms. Kweon meets the diagnostic criteria for post-traumatic stress disorder, not much turns on that in terms of assessing Ms. Kweon’s prognosis.

[183]     Where Dr. O’Shaughnessy and Dr. Patton agree is that Ms. Kweon’s psychological condition has not been adequately treated, as a result of which her prognosis is uncertain: Dr. Patton states in her second report:

I must again defer my final opinion on Ms. Kweon’s prognosis as her mood and anxiety disorders have still not been adequately treated.

[184]     Dr. O’Shaughnessy is somewhat more positive:

Overall, I regard her prognosis as relatively positive although, in fairness, we never fully know how she will respond until she has had an adequate clinical trial of medications and cognitive-behavioural therapy.

[185]     Both psychiatrists note the relationship of Ms. Kweon’s pain to her psychological and emotional issues. As noted above, her soft tissue injuries are expected to resolve which, combined with a more aggressive approach to treating her psychological illness, is likely to lead to an overall improvement in her condition. While the prognosis is again somewhat uncertain, the evidence does not establish that she will be permanently impaired by reason of her psychological condition.

[186]     I would add that I do not accept ICBC’s submission that Ms. Kweon’s principal problem is a lack of motivation. It is well established on the evidence that Ms. Kweon is suffering from a psychological disorder which has impeded her ability to take steps towards recovery. In this regard, it is unreasonable to examine the actions of a person suffering from a mental illness through the lens of someone who is not and expect them to act the same. Put another way, it is not sufficient to simply say that Ms. Kweon needs to get on with her life if it is her illness that is limiting her ability to do so. Rather, it is the proper treatment of that illness that will enable her to move forward…

[192]     Considering the impacts of the accident on Ms. Kweon, the principles emanating from Stapley and the case authorities cited, I find that a reasonable award of non-pecuniary damages is $175,000.


Court Rejects “Particularly Problematic” ICBC Expert Witness

December 9th, 2016

Adding to this site’s archived case summaries addressing advocacy by expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, soundly criticizing an expert witness for a lack of objectivity.

In today’s case (La Porte v. Earl) the Plaintiff was involved in a 2010 collision that the Defendant admitted fault for.   She suffered physical and psychiatrist injuries as a result of the crash.  In the course of the crash the Defendant’s insurer sent her to a psychiatrist who marginalized any psychiatric injuries she had and their connection to the collision.

In rejecting this opinion Mr. Justice Sewell provided the following reasons:

[74]         After careful consideration I have concluded that I can give no weight to Dr. Levin’s report. There are a number of reasons why I have reached this conclusion. I begin by saying that I found that Dr. Levin’s report lacked objectivity. It seemed to me that Dr. Levin was marshalling evidence in favour of his conclusion, rather than attempting to communicate constructively with Ms. La Porte to determine her actual mental state.

[75]         Dr. Levin developed a number of themes that he repeated throughout his report. One such theme was to emphasize how resilient Ms. La Porte had been before the Accident, and to extrapolate that resilience into her reaction to the pain and anxiety that she experienced after the Accident.

[76]         At the outset of his opinion, Dr. Levin referred to Ms. La Porte’s pre-accident condition and began by emphasizing that Ms. La Porte did not present with any biological or psychological vulnerabilities that would have predisposed her to the development of any psychiatric illness.

[77]         In his report, Dr. Levin does not address the important question of the interrelationship of pain and anxiety. In fact, Dr. Levin mentioned Ms. La Porte’s reported pain only in passing. In addition, Dr. Levin does not appear to have elicited any details about what actually occurred on Ms. La Porte’s last day of work. The impression he portrays is that Ms. La Porte was managing her job without any difficulty up to the time she stopped working, and stopped working only in anticipation of having an increased workload in the fall of the year. The portion of his report dealing with this question at page 5 states as follows:

Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems. Ms. La Porte stated that she would be upset when her dispatcher would give her a passenger with a heavy wheelchair or walker. Ms. La Porte, however, did not report an actual worsening of her reported pain or physical problems that could cause her any emotional suffering. In fact, while off work Ms. La Porte reportedly improved and was able to relax at home, at times baby-sitting her grandchildren. While discussing her current activities of daily living Ms. La Porte did not report any ongoing psychological or emotional disturbances of clinical significance that would affect her ability to return to her previous workplace or any other employment for which she is suited by her education and experience. When asked about her mood while baby-sitting for her grandchildren she said, “It’s good but I get tired faster…”. [Underline emphasis added.]

[78]         The foregoing summary is at marked variance to Ms. La Porte’s evidence in court that she struggled with the heavier physical demands of her job and the physical exertions of her job significantly worsened her pain. In addition, given Ms. La Porte’s evidence in court, which I have accepted, about the circumstances of her last day of work, I can only conclude that Dr. Levin did not inquire about those circumstances.

[79]         There were two portions of Dr. Levin’s evidence that I found particularly problematic. The first relates to this sentence at page 5 of the report: “Ms. La Porte indicated that she went on a medical leave in anticipation (not yet experienced) of having an increased workload in the fall of this year that could affect her physical problems.” When Dr. Levin was asked in cross-examination whether he had italicized the word “could” in this portion of his report to emphasize that there was no actual effect on Ms. La Porte’s physical problems, he denied that intent and stated that the italics were a clerical error. I find this answer to be lacking in credibility. In the context of the rest of that portion of his report, it is obvious that Dr. Levin was emphasizing that Ms. La Porte had not yet experienced any difficulty in coping with her work at the time she stopped working.

[80]         In addition, Dr. Levin implies in this passage that Ms. La Porte had not reported any effect that her job had on her physical problems. It is unclear whether he is suggesting she denied any negative effects or whether he based this statement on Ms. La Porte not volunteering any such information. If she told him that her job had no negative effects on her physical problems, it would have been contrary to what she told the other doctors who examined and treated her, as well as to her evidence before me, which I have accepted as credible. I therefore think it is highly unlikely that she denied any negative effects. I note that Dr. Levin did not indicate that he asked any questions about this subject in his interview of Ms. La Porte.

[81]         The second troubling evidence from Dr. Levin is found in his second report dated June 9, 2014. In that report Dr. Levin comments on the reports of the other physicians that have been put in evidence. At page 5, Dr. Levin begins his comments on Dr. Oluyede’s consultation report of November 15, 2012, which he describes as a “clinical record”. He purports to paraphrase a part of Dr. Oluyede’s report commenting on Ms. La Porte’s mood as follows at page 5:

The clinical records dated November 15, 2012, state, “[…] she describes being in a state of shock…three days later, she noticed an increasing pain…following this, she has had subsequent issues with pain…presently, she is going through legal proceedings to get some compensation…”

[82]         Dr. Levin goes on to comment on this passage from Dr. Oluyede’s report, concluding with the following sentence at page 6:

It seems one of the major issues identified in Ms. La Porte’s case is reportedly, “Legal proceedings to get some compensation as she was the injured party…” However, Dr. Oluyede does not discuss any specific psychiatric or psychological injury sustained in the subject MVA that would require any compensation.

[83]         What Dr. Oluyede actually said in her consultation report at page 1 is as follows:

Three days later she noticed an increasing pain in her right leg and her right arm. She described the pain as spasmodic. On the day of the accident she was seen in emergency and had been medically cleared.

Following this she has had subsequent issues with pain and has seen a chiropractor for a while. Both car insurance companies have been involved and her car has been fixed. She took four days off of work at that time.

Presently she is going through legal proceedings to get some compensation as she was the injured party and has been incapacitated since the accident.

She describes not feeling good most of the time, feeling easily stressed out and overwhelmed. She has had to cut down her hours of work from forty hours previously per week to thirty-five hours.

She has noticed a continuous decline in both her physical and mental health. With regards to her mental health she describes easy fatigability, worry and anxiety about her future and with regards to finances. She describes feeling drained most of the time and has noticed that on certain occasions she does have what she describes as overwhelming anxiety.

[84]         In my view, Dr. Levin did not accurately or fairly paraphrase Dr. Oluyede’s consultation report. Even more problematically, when Dr. Levin was cross-examined on the above passage from his report, he again said this was either a typographical error or he misspoke himself in his dictation and meant to say “assistance” not compensation. Again, given the context of the passage, in which Dr. Levin seems to be at pains to show that Ms. La Porte is seeking compensation, I cannot accept this explanation from him.

[85]         In addition, I found Dr. Levin to be argumentative and somewhat non-responsive in the answers he gave in cross-examination. Finally, I am concerned that Dr. Levin had some animus towards Ms. La Porte. At the outset of his notes on his interview with Ms. La Porte he recorded that he felt she was being unreasonable and uncooperative with him. None of the other doctors who conducted independent medical examinations at the request of the defendants made any such comment.

[86]         I therefore give no weight to Dr. Levin’s opinion in this matter.


$125,000 Non-Pecuniary Assessment for Permanent Aggravation of Previous Disc Injury

December 9th, 2016

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for the permanent aggravation of a pre-existing injury.

In today’s case (Churath v. Cheema) the Plaintiff was involved in a 2011 rear end collision.  Prior to this the Plaintiff suffered a disc injury to his spine which required surgical correction and was well on the way to recovery.  The collision caused an aggravation of the injury the effects of which were likely permanent.  In assessing non-pecuniary damages at $125,000 Mr. Justice Affleck provided the following reasons:

[63]         I make the following findings of fact:

a)    the plaintiff suffered a low back injury while playing volleyball in 2010, which caused a serious disc herniation. Prior to that event he had been symptom-free in his low back;

b)    the plaintiff’s surgery following the volleyball incident was successful. He was making a steady recovery and in due course would have become largely if not entirely symptom-free but for the car accident;

c)     the car accident caused the injuries and symptoms from the volleyball incident to recur. The plaintiff’s current disability is largely explained by the car accident injuries;

d)    the injury from the volleyball incident and from the car accident is an indivisible injury and division is neither possible or appropriate: Athey at para. 25;

e)    the plaintiff has continuing moderate pain and disability. He can walk adequately and drive a car although with some discomfort. His physical symptoms have diminished his employability, but he is capable of regular employment which makes only light demands on his physical capacities;

f)      the plaintiff’s employment with Allegra was ending because of changing technology in the printing industry. The plaintiff is not capable of retraining for that industry. He has a limited education, limited English language skills and minimal computer literacy. The Allegra job would have ended within a maximum of five years from the time of the car accident, even if it had not happened. The plaintiff thereafter would have made a small income using the offset printer at his home if he had not had the car accident. He remains capable of earning a small income by that means; and

g)    the car accident injuries are permanent, but when this litigation ends the plaintiff will become more active…

[71]         The plaintiff was about 46 years old at the time of the car accident. The injuries were severe and led to surgery. He will not recover entirely. There inevitably has been emotional suffering and distress. The relationship with his family, perhaps particularly with his wife, has been impaired, but I do not consider that will be permanent.

[72]         The plaintiff continues to have some disability. I have found that it is not as extensive as he wants this Court to believe. I am satisfied he can exercise reasonably vigorously; he can walk for extended periods of time; he can perform chores around his home, and he can lift heavier weights than the 20 pound bag of flour which he testified he could not lift.

[73]         I assess non-pecuniary general damages at $125,000.


Complex Wage Loss Claim Fuels Successful Jury Strike Application

December 7th, 2016

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, granting a Plaintiff’s jury strike application.

In today’s case (van Driesum v. Young) the Plaintiff was involved in a 2011 collision and sued for damages.  The trial was scheduled for 18 days before a jury at the Defendants election.  The Plaintiff succeeded in striking the jury from the case largely on the basis that his wage loss claim was complex.  In granting the application Mr. Justice Macintosh provided the following reasons:

[6]             The overall question is trial fairness, weighing the Defendant’s presumptive right to a jury against the risk of unfairness to the Plaintiff by having a jury attempt to decide facts and answer questions which are too intricate or complex.  My conclusion is that this case should not proceed with a jury.

[7]             The motor vehicle accident giving rise to the claim occurred on February 23, 2011.  That year also serves as the approximate dividing line between what I will characterize as two separate careers for the Plaintiff.  The methods for determining income loss and lost-earning capacity are complicated within each of his two careers.  In what I am viewing as the Plaintiff’s post‑accident career, or second career, determining income loss and lost-earning capacity are, in my view, particularly complex.

[8]             Before the accident, the Plaintiff practised law for 20 years.  For the last 17 of those years, he was a partner in a Victoria law firm.  During at least part of that time, he practised law through the business model of a personal law corporation.  Money he received from the firm went into his law corporation.  He did not take all that money out, at least not regularly.  Also, he split income with his wife in reliance on the applicable tax laws.  Accordingly, his income tax returns do not tell the full story of his pre‑accident earnings.  They need to be interpreted together with his personal law corporation’s annual financial statements, and the particulars of his income splitting with his wife.

[9]             In the result, determining the Plaintiff’s pre‑accident earning history will not be a straightforward exercise.  The complexity of that exercise, however, pales when it is compared with determining the Plaintiff’s earnings, lost earnings, and diminished earning capacity post-accident.

[10]         The Plaintiff has maintained, at different times, at least three personal companies:  through one, after his accident, he became the president of a mining company; through another, also after the accident, he consulted on WorkSafe BC claims; the other was his pre‑existing personal law corporation, which remained in place until December 31, 2014, to receive the Plaintiff’s declining earnings from his residual practise of law.  That included some post‑accident legal work by the Plaintiff, as well as some pre‑accident legal work which gave rise to post‑accident remuneration.

[11]         It will, in my view, be extremely difficult for the trier of fact to sort out both the Plaintiff’s true earnings in the post‑accident period, and the extent to which the accident impaired his earning capacity.

[12]         Furthermore, the Plaintiff’s post‑accident earnings history, and evidence of earning capacity, is over-layered with a dispute the Plaintiff had with a post‑accident business colleague, who was a former client from the Plaintiff’s law practice.  Plaintiff’s counsel characterized the evidence of that dispute as amounting to a trial within a trial in this proceeding, and that is not an unreasonable analogy.

[13]         The difficulties for a jury in this case would be increased by the difficulties a judge would have in properly charging the jury in matters of causation and the quantification of damages.

[14]         The brief summary above, of the complexities in determining both causation and damages, and in the judge charging the jury, probably would have caused me to strike the jury even if there were no other relevant facts.  When I add the other complexities of the case, which are associated with the accident itself, and the related medical evidence, the complexity is only increased.

[15]         I will preface this next part of the analysis by saying that what I call the accident evidence and medical evidence, viewed in isolation, would probably not have caused me to strike the jury.  That evidence becomes relevant on this application, however, when it is added to the evidence associated with determining the past and future income loss, and diminished earning capacity, discussed earlier in these reasons.

[16]         Liability is in issue.  All the elements of the damages claimed are also in issue.  The Defendant, through his pleadings and his expert witnesses, disputes diagnosis, causation, mitigation, prognosis and the Plaintiff’s working capacity.  It is probably the case, as well, that at least some clinical records will have to become part of the evidentiary record.

[17]         The Plaintiff plans to call nine expert witnesses in at least seven disciplines, and the Defendant plans to call four expert witnesses and tender eight expert reports.  I further note that the Plaintiff intends to object to all or part of three of the Defendant’s expert reports, and the Defendant intends to object to all or part of four of the Plaintiff’s expert reports.

[18]         The law is clear in saying that the judge’s discretion on this application must be exercised having primary regard to his or her assessment of the relevant factors present in the particular application:  see Rados v. Pannu, 2015 BCCA 459, at paras. 30‑32 and Such v. Dominion Stores Ltd., [1961] O.R. 190 (Ont. C.A.).  In other words, the analysis, not surprisingly, is driven by the facts present in the application at bar.

[19]         What is appropriate for a jury to try has to do not only with the jury’s capacity to understand the evidence as it is presented and rebutted, but also to retain over several weeks what they have heard and then analyse it in the context of the questions they are required to answer.  (See Wipfli v. Britten, [1981] B.C.J. No. 1706 (F.C.) at paras. 30 and 31.)

[20]         When the facts in this application are viewed through the legal prism of the cases cited above, I find that the Plaintiff has established the three grounds he relies upon, noted above in paragraph 5.  As stated above in paragraph 6, I conclude that I should exercise my discretion to strike the jury.


$110,000 Non-Pecuniary Assessment for Likely Permanent Chronic Pain Syndrome

December 6th, 2016

Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, assessing damages for a collision caused chronic pain syndrome.

In today’s case (Beaton v. Perkes) the Plaintiff was involved in a 2012 rear end collision the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries and related headaches.  Her symptoms persisted and unfortunately developed into a chronic pain syndrome which had a poor prognosis.  In assessing non-pecuniary damages at $110,000 Mr. Justice Voith provided the following findings and reasons:

[14]         There is consensus on the nature, severity and prognosis for most of the injuries Ms. Beaton suffered in the Accident. There is also agreement that these injuries were caused by the Accident. This consensus is found in the two expert reports of Dr. Loewen, as well as in the expert reports of each of Dr. Grover and Dr. Pisesky. Drs. Grover and Pisesky are orthopedic surgeons who did independent medical examinations of Ms. Beaton on behalf of the plaintiff and the defendants respectively.

[15]         These various issues and conclusions are sufficiently straightforward that the cross-examinations of Drs. Loewen and Grover, on these matters, were limited. Dr. Pisesky’s report was filed without his being called for cross-examination.

[16]         Ms. Beaton has been assessed and diagnosed with soft tissue injuries to her neck and upper and mid-back. She has also been diagnosed with cervicogenic headaches. She struggles with serious and ongoing disruptions to her sleep. She is often awake three or four times a night and some evenings she only sleeps for two to four hours.

[17]         There has been no meaningful improvement in these various symptoms and, indeed, Ms. Beaton considers that some of them have worsened over time. I accept that evidence.

[18]         Ms. Beaton has, as recommended, attended at numerous massage and physiotherapy treatments. She has tried trigger point injections. She has attended a work hardening program. There was no suggestion that her efforts were not earnest.

[19]         Each of the experts I have referred to accepts that Ms. Beaton now struggles with chronic pain syndrome. They provided the following opinions on her prognosis:

(a)      Dr. Grover opined that Ms. Beaton will “continue to have some degree of chronic pain which is highly likely to persist permanently”.

(b)      Dr. Loewen said: “Based on my experience treating other patients with similar conditions, I would expect that Mrs. Beaton will have ongoing chronic back pain extending from her neck all the way to her lumbar spine. She may make some small further gains but I would expect most of her symptomology with which she currently struggles to persist long-term. Also of note, due to the injuries sustained in her neck and back, all of which are soft tissue in nature, it is possible that she may be susceptible to injuries with lower amounts of trauma in the future.”

(c)      Dr. Pisesky said: “in terms of overall progress it is my opinion that she … had plateaued in terms of recovery approximately 6 months post injury and therefore her prognosis for any significant improvement of either pain or function is guarded”…

[59]         In the result, I consider that an award of $110,000 fairly compensates Ms. Beaton for her non-pecuniary losses.


My 2016 Clawbies Nominations

December 3rd, 2016

What’s a Clawbie?  You can click here for a lengthy explanation, or if you want to skip all that pesky reading what you really need to know is that Clawbies are annual law blog awards handed out following a top secret meeting between Steve Matthews, Jordan Furlong and Simon Fodden.  I don’t know what all goes on there but suspect it may involve drawn straws or sizable kickbacks.  Whatever the deal I know it’s not all shady business as these legal power mongers must select their winners based on peer endorsements.

For 2016 I’m going to nominate blawgging dinosaurs.  Blogs that are senior citizens by internet years that just keep going strong!

1.  Samantha Collier’s Social Media For Lawfirms which has been telling lawyers that social media is something that actually is important and is still doing so because we just don’t listen!

2. David Bilinsky’s Thoughtful Law – David wrote an article years ago that was the inspiration and he’s still going strong!

3. Slaw – Yeah, I know, its the best.  So good in fact it can’t even win anymore.  I’m nominating it anyways.