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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, 2017

BC Supreme Court – Double Costs Does Not Mean Double Disbursements

June 28th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vernon Registry, confirming that an order for double costs does not also mean a party is entitled to double disbursements.

In today’s case (Lafond v. Mandair) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Plaintiff made a formal settlement offer of $300,000.  At trial the Plaintiff beat this quantum being awarded just over $343,000.

The Plaintiff sought double costs and disbursements.  The Defendant agreed double costs were in order but argued that double disbursements were not recoverable.  The Court agreed and in doing so provided the following succinct reasons:

[14]         Double costs may be awarded for some or all steps taken after delivery of the offer to settle. A step in the proceeding is a formal step that moves the action forward: Canadian National Railway Company v. Chiu, 2014 BCSC 75 at para. 7.

[15]         Incurring a disbursement is not a formal step as contemplated by the Civil Rules.

[16]          I, therefore, conclude that under Rule 9-1(5)(b), double disbursements are not to be awarded as part of double costs. Thus, a successful offer to settle can be rewarded with an entitlement to double costs for tariff items, together with actual and reasonable disbursements.


“It Is Not Necessary To Call Expert Evidence On Each Issue”

June 26th, 2017

In recent years expert evidence has become more common in injury litigation and it is not unusual to see litigants sometimes err on the side of overkill.  To this end helpful comments were recently released by the BC Supreme Court, Kelowna Registry, highlighting this practice and reminding litigants expert evidence can be used judiciously.

In the recent case (Truax v. Hyrb) the parties were involved in a collision and fault was at issue.  The Defendant brought an application seeking a dismissal of the lawsuit and argued that the Plaintiff failing to adduce expert engineering evidence should lead to an adverse inference.  In rejecting this suggestion Mr. Justice Dley provided the following comments about the over-use of expert evidence:

[20]         The defence argues that the failure by the plaintiff to introduce engineering evidence of the collision is “telling” and that an inference should be drawn against Mr. Truax. I agree that the absence of engineering evidence is telling – there is no need to call such expert evidence when common sense prevails.

[21]         Litigation has become a costly venture; oftentimes unnecessarily so. Litigants are far too quick to secure expert testimony when it is not required. Perhaps that is out of an abundance of caution and concern that the absence of expert evidence will be a failing of counsel.

[22]         Each case should be considered on its unique circumstances. It is trite to say that it is not necessary to call expert evidence on each issue. Expert testimony should be restricted to those matters where it would actually assist the court because the evidence is so specialized, scientific or complex. Expert evidence should not be viewed as a default or automatic step in litigation strategy.

 


$75,000 Non-Pecuniary Assessment for Aggravation of Chronic, Disabling Pre-Existing Condition

June 14th, 2017

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a collision which aggravated long-standing pre-existing health complications.

In today’s case (Cheema v. Khan) the Plaintiff was disabled since 2003 due to arthritis and depression.  She was involved in a 2012 collision that the Defendants admitted fault for.  The collision aggravated her pre-existing issues.  In assessing non-pecuniary damages at $75,000 Chief Justice Hinkson provided the following reasons:

[103]     There is no question that Ms. Cheema was unemployable after 2003. She had been on long-term disability from employment as a linen worker since 2004 due to rheumatoid arthritis and major depressive disorder. She was diagnosed with rheumatoid arthritis in the 1990s. The pain was in her neck initially, followed by bilateral hand pain since 2000. Her rheumatoid arthritis affected her hands, wrists, feet, ankles and shoulders. In the month preceding the Collision, the plaintiff had a flare up of her rheumatoid arthritis. Since 2000, the plaintiff had also suffered from longstanding, severe and chronic major depressive disorder, chronic anxiety and panic attacks leading up to the Collision.

[104]     I am unable to accept the plaintiff’s submission that her condition prior to the Collision was stable. She suffered from severe rheumatoid arthritis, Morton’s neuromas and a severe major depressive disorder prior to the Collision, and these conditions compromised her ability to ambulate, cook, clean and perform other household activities. I am satisfied that the plaintiff’s severe rheumatoid arthritis and severe depression waxed and waned prior to the Collision, but overall were worsening, and would have continued to worsen even if she had not been involved in the Collision.

[105]     I find, however, that the Collision caused an aggravation of her pre-Collision neck, back and shoulder pain and headaches, and likely had a negative effect on the symptoms arising from her rheumatoid arthritis.

[106]     I conclude that the plaintiff’s neck, back and shoulder pain and headaches were worsened by the Collision and that without the accident she would not have suffered from those difficulties as much as she has for the four years that have followed the Collision.

[107]     I accept the evidence of Dr. Shuckett that stress has a negative effect on someone suffering from rheumatoid arthritis, and has had such an effect on the plaintiff and accelerated the progress of her disease.

[108]     I am also persuaded that the Collision had a negative effect on the plaintiff’s psychiatric state that has resulted in a downward spiralling effect causing the plaintiff to brood about her physical condition and limit her activities, in turn worsening her depression, in turn compromising her participation in certain activities and so on…

[133]     I assess the plaintiff’s non-pecuniary damages at $75,000.


BC Court of Appeal – The Phrase Crumbling Skull is “Rarely Helpful”

June 8th, 2017

Reasons were released today by the BC Court of Appeal criticizing  the phrase ‘crumbling skull’ and spelling out the analysis a Court must take when dealing with non tort related causes to a Plaintiff’s position.

In the recent case (Gordon v. Ahn) the Plaintiff was injured in a 2009 collision and was awarded $50,000 at trial.  In reaching the award the trial judge noted that the plaintiff was a ‘crumbling skull’ and further that she failed to mitigate her damages and reduced the damage assessment by some unspecified amount.  The BC Court of Appeal ordered a new trial noting the trial judge did not properly address the evidence to justify any reductions.  In discussing what is needed of a Court when deciding what position a plaintiff would be in but for the tort the following reasons were provided:

[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing. Describing a plaintiff as coming within the “crumbling skull doctrine” does not eliminate the need for a complete analysis of the pain and suffering caused by the accident.

[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.

[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.


“Partisan” Experts Criticized and Rejected by BC Supreme Court

June 6th, 2017

Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.

In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.


$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

June 6th, 2017

Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.

In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.


Supreme Court of Canada – Mental Injury Compensable Without “Recognized Psychiatric Condition”

June 2nd, 2017

Important reasons for judgement were published today by the Supreme Court of Canada discussing the legal threshold in lawsuits seeking damages for mental injuries caused by the negligence of others.

In today’s case (Saadati v. Moorhead)  the Plaintiff was involved in a collision and sued for damages alleging brain injury.  The trial judge rejected this claim but found that the Plaintiff “was a “changed man” after the accident” and awarded $100,000 in non-pecuniary damages for a psychological injury.  The BC Court of Appeal overturned the judgement and dismissed the claim finding the test of proving “a recognizable psychiatric (or psychological) condition” was not met.

The Supreme Court of Canada reinstated the trial award noting the Court of Appeal was in error and that a recognized psychiatric condition is not a pre-requisite to compensation for mental injury.  In reaching this conclusion Canada’s highest court provided the following reasons addressing compensable mental injury in negligence litigation:

[35]                          In short, no cogent basis has been offered to this Court for erecting distinct rules which operate to preclude liability in cases of mental injury, but not in cases of physical injury. Indeed, there is good reason to recognize the law of negligence as already according each of these different forms of personal injury — mental and physical — identical treatment. As the Court observed in Mustapha (at para. 8), the distinction between physical and mental injury is “elusive and arguably artificial in the context of tort”. Continuing (and citing Page v. Smith, at p. 188), the Court explained that, “[i]n an age when medical knowledge is expanding fast, and psychiatric knowledge with it, it would not be sensible to commit the law to a distinction between physical and psychiatric injury, which may . . . soon be altogether outmoded. Nothing will be gained by treating them as different ‘kinds’ of personal injury, so as to require the application of different tests in law” (emphasis in original; see also S. Deakin, A. Johnston and B. Markesinis, Markesinis and Deakin’s Tort Law (7th ed. 2013), at p. 124). This is entirely consistent with the Court’s longstanding view, expressed over a century ago, by Fitzpatrick C.J. in Toronto Railway, at pp. 269-70:

It would appear somewhat difficult to distinguish between the injury caused to the human frame by the impact and that resulting to the nervous system in consequence of the shock . . . . The nature of the mysterious relation which exists between the nervous system and the passive tissues of the human body has been the subject of much learned speculation, but I am not aware that the extent to which the one acts and reacts upon the other has yet been definitely ascertained. . . . I cannot find the line of demarcation between the damage resulting to the human [body] . . . and that which may flow from the disturbance of the nervous system . . . . The latter may well be the result of a derangement of the relation existing between the bones, the sinews, the arteries and the nerves. In any event the resultant effect is the same. The victim is incapacitated . . . .

Or, as Davies J. (as he then was) added in Toronto Railways (at p. 275), “[t]he nervous system is just as much a part of man’s physical being as the muscular or other parts”. In a similar vein, Lord Macmillan, in Bourhill v. Young (at p. 103), said “[t]he distinction between mental shock and bodily injury was never a scientific one, for mental shock is presumably in all cases the result of, or at least accompanied by, some physical disturbance in the sufferer’s system.”

[36]                          It follows that requiring claimants who allege one form of personal injury (mental) to prove that their condition meets the threshold of “recognizable psychiatric illness”, while not imposing a corresponding requirement upon claimants alleging another form of personal injury (physical) to show that their condition carries a certain classificatory label, is inconsistent with prior statements of this Court, among others. It accords unequal — that is, less — protection to victims of mental injury. And it does so for no principled reason (Beever, at p. 410).  I would not endorse it.

[37]                          None of this is to suggest that mental injury is always as readily demonstrable as physical injury. While allegations of injury to muscular tissue may sometimes pose challenges to triers of fact, many physical conditions such as lacerations and broken bones are objectively verifiable. Mental injury, however, will often not be as readily apparent. Further, and as Mustapha makes clear, mental injury is not proven by the existence of mere psychological upset. While, therefore, tort law protects persons from negligent interference with their mental health, there is no legally cognizable right to happiness. Claimants must, therefore, show much more — that the disturbance suffered by the claimant is “serious and prolonged and rise[s] above the ordinary annoyances, anxieties and fears” that come with living in civil society (Mustapha, at para. 9). To be clear, this does not denote distinct legal treatment of mental injury relative to physical injury; rather, it goes to the prior legal question of what constitutes “mental injury”. Ultimately, the claimant’s task in establishing a mental injury is to show the requisite degree of disturbance (although not, as the respondents say, to show its classification as a recognized psychiatric illness).

[38]                          Nor should any of this be taken as suggesting that expert evidence cannot assist in determining whether or not a mental injury has been shown. In assessing whether the claimant has succeeded, it will often be important to consider, for example, how seriously the claimant’s cognitive functions and participation in daily activities were impaired, the length of such impairment and the nature and effect of any treatment (Mulheron, at p. 109). To the extent that claimants do not adduce relevant expert evidence to assist triers of fact in applying these and any other relevant considerations, they run a risk of being found to have fallen short. As Thomas J. observed in van Soest (at para. 103), “[c]ourts can be informed by the expert opinion of modern medical knowledge”, “without needing to address the question whether the mental suffering is a recognisable psychiatric illness or not”. To be clear, however: while relevant expert evidence will often be helpful in determining whether the claimant has proven a mental injury, it is not required as a matter of law. Where a psychiatric diagnosis is unavailable, it remains open to a trier of fact to find on other evidence adduced by the claimant that he or she has proven on a balance of probabilities the occurrence of mental injury. And, of course, it also remains open to the defendant, in rebutting a claim, to call expert evidence establishing that the accident cannot have caused any mental injury, or at least any mental injury known to psychiatry. While, for the reasons I have given, the lack of a diagnosis cannot on its own be dispositive, it is something that the trier of fact can choose to weigh against evidence supporting the existence of a mental injury.