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.

BC Court of Appeal Discusses When Special Costs Against Lawyers Personally Should be Ordered

September 19th, 2018

In exceptional circumstances lawyers can be ordered to be personally on the hook for costs when litigation goes awry.  Today the BC Court of Appeal discussed when such orders are warranted and when they are not.

In today’s case (Nuttall v. Krekovich) the Plaintiff was seriously injured in a hit and run accident.  A lawsuit was started suing ICBC as a nominal defendant pursuant to s. 24 of the Insurance (Vehicle) Act.  As the litigation progressed the Plaintiff’s lawyer came to believe that the Defendant may have been the driver and brought an application to add him to the lawsuit.  Shortly after obtaining this order the lawyer realized he was mistaken and discontinued the lawsuit against the Defendant.

The Defendant sought costs against the lawyer personally and the Chambers judge made such an order finding  the lawyers actions were “indefensible and an abuse of process meriting sanction in the form of an order of special costs payable by him personally”.

The lawyer successfully appealed the order with the BC Court of Appeal noting the chambers judge made several errors in ordering special costs against the lawyer.  In discussing the scope of special costs being ordered against a lawyer personally BC’s highest court provided the following reasons:

[25]         It is my view that the chambers judge made several errors that warrant intervention by this Court.

[26]         First, special costs have a punitive or deterrent element and are only appropriate where the conduct in issue is deserving of punishment or rebuke. This well-known principle stems from numerous cases, most recently enunciated in J.P. v. British Columbia (Children and Family Development), 2018 BCCA 325 at para. 28. The chambers judge erred in principle by failing to consider the cautious approach to an award of special costs against a lawyer personally, as well as the kind of reprehensible conduct that would justify such an award, mandated by the Supreme Court of Canada in Young v. Young, [1993] 4 S.C.R. 3 and more recently in Quebec (Director of Criminal and Penal Prosecutions) v. Jodoin, 2017 SCC 26.

[27]         In Young the court directed judges to be “extremely cautious” in awarding costs personally against lawyers given their duties to guard confidentiality of instructions and to bring forward with courage even unpopular causes:

… A lawyer should not be placed in a situation where his or her fear of an adverse order of costs may conflict with these fundamental duties or his or her calling.

[28]         In Jodoin, the court confirmed that the threshold for exercising the power to award costs against lawyers is high, such that there must be a finding of reprehensible conduct by the lawyer. Reprehensible conduct “represents a marked and unacceptable departure from the standard of reasonable conduct expected of a player in the judicial system” (at para. 27). Mr. Justice Gascon, for the majority, described the kind of conduct that would justify such an order at para. 29:

[29]      In my opinion, therefore, an award of costs against a lawyer personally can be justified only on an exceptional basis where the lawyer’s acts have seriously undermined the authority of the courts or seriously interfered with the administration of justice. This high threshold is met where a court has before it an unfounded, frivolous, dilatory or vexatious proceeding that denotes a serious abuse of the judicial system by the lawyer, or dishonest or malicious misconduct on his or her part, that is deliberate…

[29]         Consistent with these decisions, this Court has long held that such orders should be made only in “very special circumstances”, and not on the basis of mistake, error in judgment or even negligence: see Hannigan v. Ikon Office Solutions Inc. (1998), 61 B.C.L.R. (3d) 270 (C.A.); Pierce v. Baynham, 2015 BCCA 188 at para. 41.

[30]         Second, the chambers judge erred in concluding that Mr. Krekovic’s failure to disclose the entire circumstances of his investigation was in itself sufficient to justify an order for special costs. A special costs order is not justified only because counsel fails to disclose evidence that ultimately proves to be material or incorrect: see Pierce at para. 43. The chambers judge made no finding of dishonesty, accepting that Mr. Krekovic’s motivation to bring the application was “in pursuance of his duty to his client”. Given that, his failure to disclose more about his investigation does not constitute reprehensible conduct sufficient to justify an award of special costs. This is particularly so in the context of the evidence in the application that Mr. Krekovic clearly informed the court that his own investigation had not yielded any reliable information and he was relying only on information provided to him from another lawyer, the basis for which had not been disclosed.

[31]         Moreover, I cannot agree that disclosure of further information would necessarily have yielded a different outcome in the application. The chambers judge placed considerable importance on “the discrepancy between the date of birth that he had given for the Mr. Dhillon identified by Mr. Folick, and the date of birth of the Mr. Dhillon whom his investigation had previously identified as a potential defendant”. In fact, there was no discrepancy in the most recent date of birth provided by the investigator, Mr. Loncaric, and the date of birth later provided by Mr. Folick. The only discrepancy was with the earlier information Mr. Loncaric had given, which had not been confirmed. Had the application judge been informed of these or other details – such as the inconclusive information pointing to another Mr. Dhillon – the order may have nonetheless been granted. It is also important, in my view, that Mr. Dhillon did not attend himself to oppose the application. Instead, the application was opposed only by ICBC, who put the issue of the sufficiency of the information squarely before the court.

[32]         Additionally, Mr. Krekovic’s conduct after the order was granted demonstrates an effort to be prudent. He did not enter the order or serve the amended notice of civil claim without making further inquiries of Mr. Folick’s office about the reliability of the information, and as soon as he learned that the information was in fact incorrect, he advised Mr. Dhillon’s’ counsel that the action would be discontinued against him.

[33]         In my opinion, Mr. Krekovic’s conduct was far from being characterized as reprehensible.

[34]         Finally, the chambers judge referred to Rule 14-1(33) as allowing for an order for special costs. Rule 14-1(33) gives the court discretion to make various orders if it considers that a party’s lawyer “has caused costs to be incurred without reasonable cause, or has caused costs to be wasted through delay, neglect or some other fault”. One of those orders is that the lawyer “be personally liable for all or part of any costs that his or her client has been ordered to pay to another party”.

[35]         This rule, which does not distinguish between party and party costs and special costs, has expanded the scope of conduct which might support a costs order against a lawyer. As explained in Nazmdeh v. Spraggs, 2010 BCCA 131, there is no requirement for “serious misconduct” to justify an order that a lawyer pay party and party costs, but it is still necessary to find reprehensible conduct on the part of the lawyer to justify an order for special costs. Moreover, the lower standard mandated by Rule 14-1(33) must also be exercised with restraint, as the Court reasoned at paras. 103‒104:

[103]    The power to make an order for costs against a lawyer personally is discretionary. As the plain meaning of the Rule and the case law indicate, the power can be exercised on the judge’s own volition, at the instigation of the client, or at the instigation of the opposing party. However, while the discretion is broad, it is, as it has always been, a power to be exercised with restraint. All cases are consistent in holding that the power, whatever its source, is to be used sparingly and only in rare or exceptional cases.

[104]    The restraint required in the exercise of the court’s discretion is not to be confused with the standard of conduct which may support its use. Care and restraint are called for because whether the unsuccessful party or his lawyer caused the costs to be wasted may not always be clear, and lawyer and client privilege is always deserving of a high degree of protection.

[36]         In conclusion, it is my view that Mr. Krekovic’s conduct in making the application to add Mr. Dhillon as a defendant did not approach the kind of reprehensible conduct required to justify an order for special costs against him as counsel.

[37]         I would allow the appeal and set aside the order of the chambers judge that Mr. Krekovic personally pay the special costs of Mr. Dhillon. I would also award costs to the appellant of this appeal and for the application for special costs in the court below.


Claim Dismissed Involving Broken Armrest Leading to Hip Fracture

September 18th, 2018

Reasons for judgement were published today by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit alleging a breach of the Occupier’s Liability Act.

In today’s case (Hamilton v. The Owners, Strata Plan VIS3782) the Plaintiff broke his hip after falling while leaning on an armrest of a bench owned by the Defendants.  The armrest “broke away and the plaintiff says that unexpected loss of support put him off balance. His body twisted to the left and he fell to the ground.”.

The Plaintiff sued alleging negligence and a breach of the Occupier’s Liability Act.  The Court found that the armrest was indeed defective from natural wear but the Defendants were not liable as they did not know about this and applying a reasonable standard of inspection likely would not have known about it.  In dismissing the claim Mr. Justice Smith provided the following reasons:

[52]         In this case, there is evidence that this type of bench, when exposed to the elements on a long-term basis, does deteriorate over time and that the bench broke at the very spot where the deterioration is most likely to occur. That is evidence from which it can be inferred, on the balance of probabilities, that there was some defect or deterioration in the wood that caused the armrest to break off when the plaintiff put his weight on it. I find that the plaintiff has satisfied the first branch of the test referred to in Thomas.

[53]         On the second branch of that test, the question is whether the presence of that defect amounted to an objectively unreasonable risk of harm. That depends on whether the Strata knew or reasonably should have known about it, and whether a reasonable owner, knowing about the defect, would have repaired or removed the bench before the date of the plaintiff’s fall. The standard is one of reasonableness, not perfection.

[54]         The evidence is clear that the Strata Council had received no complaints about the bench and was not aware of any defect. The evidence of Ms. Lennard is that benches were inspected regularly to ensure they were secure and in good condition. That inspection was undoubtedly more cursory or less exacting than what the plaintiff’s experts suggest, but there is no evidence that residents of a strata who volunteer to serve on a garden committee had or should have had the same knowledge as experts in wood products.

[55]         Dr. Nichols said the purpose of the inspection he recommends is to “simulate the strains or stresses applied to the wood structure during use.” Mr. Moffatt said, on discovery, that the benches were used “extensively and intensively during the summer months.” As counsel for the Strata notes, the “ordinary stresses and strains” were not just simulated, but were actually being applied on a regular basis.

[56]         I find that the standard of inspection put forward by the plaintiff is one of perfection rather than reasonableness. But even if that standard is applicable, the plaintiff’s expert, Mr. Anderson’s opinion was that the detailed inspection be done only at least once a year. The logical time to perform an annual inspection would have been in the spring—before the period of most intensive use and immediately after the season of greatest exposure to rain. There is no evidence from which it can be inferred that the defect that caused the plaintiff’s fall in December 2015 would have been present or detectable on an inspection six to eight months earlier.


$140,000 Non-Pecuniary Damage Assessment for Collision Related Chronic Pain

September 18th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $140,000 for injuries leading to chronic pain following a vehicle collision.

In today’s case (Ferguson v. Watt) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The Plaintiff suffered “injuries to her jaw, chest, thumbs and left knee, as well as soft tissue injuries“.  While many of the injuries recovered the Plaintiff continued “to suffer from chronic pain in her neck, upper back, right shoulder and left knee, and fluctuating levels of sleeplessness, depressed mood and frustration.“.

The Defendant unsuccessfully challenged the Plaintiff’s credibility at trial.  In assessing non-pecuniary damages at $140,000 Madam Justice Marzari provided the following reasons:

[196]     I find on all the evidence that Ms. Ferguson’s injuries have resulted in chronic, persistent, disabling pain which continues to impact her. The life she has ahead of her is not likely to be as enjoyable as a result of the accident and the injuries that continue to affect her – causing pain, discomfort, sleep disruption, loss of self esteem, limiting her recreational activities, causing her to take medication that may compromise her long term health, diverting time and energy to attend therapy, causing her to have less energy to engage in activities outside of work, and causing her stress and anxiety about her future. Most significantly, the accident has forced her to abandon the operating room. This has affected her identity as a capable and significant contributor to the direct care of patients, and has led her to question her own worth. While she still identifies as a nurse, and continues to wear her scrubs years after the accident even in her management roles, her sense of loss in this regard is acute and ongoing.

[197]     I would note in this case in particular that Ms. Ferguson’s stoicism and perseverance in working through her pain has undoubtedly reduced her financial losses. I do not find, however, that it suggests that she is any less in pain, or less emotionally affected by the loss. To the contrary, I find that she has worked harder to make up for any lag in her physical or mental abilities caused by the accident and her ongoing symptoms and medications.

[198]     In these circumstances, I find that her non-pecuniary losses are particularly significant and require compensation. I award $140,000 in non-pecuniary damages.


Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

September 14th, 2018

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.

In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages.   Prior to trial the Defendants offered to settle for $50,000.  A further offer of $65,000 was tabled.  Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought.  The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.

The Jury ultimately dismissed the claim.  In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23]     The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24]     The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25]     From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center.  There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case.  I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence.  Often video surveillance is not compelling; here it was.

[26]     Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

·        The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident.  Her GP testified that he would have made a note of these complaints if they were made to him.

·        The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

·        In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary.  She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder).  However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident.  Further the surveillance video showed the plaintiff working at an elections voting station.

·        At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport.  She also said she did not own any other properties other than her primary residence.  However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for.  Her reported rental income was more than she had ever earned from Swissport before the accident.

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.


Occupier’s Liability Claim Dismissed Where Plaintiff Did Not Know Why He Fell Down Stairs

September 4th, 2018

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an occupier’s liability lawsuit involving a plaintiff who was injured after falling down stairs.

In the recent case (Goddard v. Bayside Property Services Ltd.) the plaintiff “fell on a wooden exterior staircase outside a fire exit” at the rear of a property owned by the Defendant.  The Plaintiff did not know why he fell and did not produce any evidence documenting the stairs being a hazard at the time of the fall.  In dismissing the claim via a summary trial application Mr. Justice Ball provided the following reasons:

[17]         In this case, the plaintiff advanced a theory about what caused his fall, but the Court cannot speculate in respect to a theory; the cause of the fall has not been established on the evidence called by the plaintiff.

[18]         The standard of care under the Act and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact and must be determined based on the circumstances of the case: Agar v. Weber, 2014 BCCA 297 at para. 30.

[19]         The existence of stairs by itself is not an unreasonable risk of harm, but a risk that persons in our society face on a daily basis. The existence of stairs is not therefore something from which the defendants needed to protect the plaintiff: Trinetti v. Hunter, 2005 BCCA 549 at para. 11; Delgado v. Wong, 2004 BCSC 1199 at para. 25.

[20]         The fact of the plaintiff’s fall does not establish that the occupier failed to take reasonable care to ensure the plaintiff was reasonably safe. The plaintiff’s uncontroverted evidence, which was accepted by the defendants, is that he does not know what caused him to fall. If that is the case, he cannot establish the defendants caused the fall and he fails then to establish either negligence or breach of a duty under the Act.

[21]         Further, given the detailed description of the inspection and maintenance of the staircase involved by the staff and owners of the strata, the defendants have met the requisite standard of care under both the Act and common law negligence.

[22]         While the Court heard argument concerning allegations the plaintiff was negligent and submissions relating to quantum of damages, I do not regard those matters as necessary for the purpose of giving judgment.

[23]         In the circumstances of this case, the plaintiff has clearly not met the onus which he bears, and as a result the action falls to be dismissed.


$75,000 Non-Pecuniary Assessment for Soft Tissue Injuries Resulting in Chronic Pain

September 3rd, 2018

Reasons for Judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries.

In the recent case (Kagrimanyan v. Weir) the Plaintiff was involved in a rear-end collision caused by the Defendants.  Liability was admitted.  The crash caused various soft tissue injuries which led to chronic pain.  Full resolution of the Plaintiff’s symptoms was not expected.  In assessing non-pecuniary damages at $75,000 Mr. Justice Riley provided the following reasons:

[54]         I must consider the nature of Ms. Kagrimanyan’s injuries, and the impact of those injuries on Ms. Kagrimanyan’s quality of life. In terms of the immediate or short term effects of the accident, Ms. Kagrimanyan suffered a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower back pain extending into her leg. The headaches, neck and upper back pain have largely resolved over time. However, Ms. Kagrimanyan continues to suffer from lower back pain which has become chronic. There is a consensus amongst the medical experts who testified at trial that Ms. Kagrimanyan has plateaued in her recovery, and that she is likely to have some degree of continuing pain, made worse by fatigue or prolonged physical effort, including standing or even sitting in one position for an extended period of time.

[55]         In assessing the extent of Ms. Kagrimanyan’s loss, I must take into account that at the time of the accident she was 35 years old, and she is now 40. According to the evidence, she will continue to suffer from some degree of pain, at least on an intermittent basis, for the balance of her life. Ms. Kagrimanyan may be able to better manage or cope with her limitations through improved physical conditioning, but I find based on all of the expert medical testimony that Ms. Kagrimanyan is not likely to achieve full recovery. This is a significant factor when determining a damage award that will fairly and reasonably compensate Ms. Kagrimanyan for the injuries she has suffered and the resulting impact on her life.

[56]         I also accept that Ms. Kagrimanyan has become deconditioned over time, and that with improved physical fitness she may be better able to manage her discomfort and limitations. On this point, I accept the testimony of Dr. Gray that while enhanced conditioning may improve Ms. Kagrimanyan’s ability to cope with pain, it is unlikely to eliminate the pain itself.

[57]         In terms of the overall effect of the accident on Ms. Kagrimanyan’s quality of life, I find that the injuries and resulting chronic pain have impacted and will continue to impact her recreational, social, and domestic activities. She is unable to engage in some of the recreational pursuits she used to enjoy. She is still able to socialize and do housework, but finds these things more difficult than they used to be. She has also experienced and will continue to experience pain and fatigue at work. As Dr. Gray put it, Ms. Kagrimanyan’s injuries have left her with a mild form of disability. While able to remain “durably employed”, Ms. Kagrimanyan experiences increasing discomfort over the course of the work day, and as the work week progresses.

[58]         I conclude that Ms. Kagrimanyan should be awarded non-pecuniary damages of $75,000. This quantum of damages takes into account all of the non-pecuniary impacts of the accident, including added difficulty in performing household tasks. Although Ms. Kagrimanyan has made a discrete claim for housekeeping as a cost of future care, the particular nature of Ms. Kagrimanyan’s injuries and their impact on her ability to do housework is, in my view, properly addressed under the rubric of non-pecuniary damages. The only exception is with respect to heavy duty or seasonal housework, a discrete category of housework that can be dealt with by way of a pecuniary damage award as explained below.


PTSD Claim Succeeds For Mistaken Plaintiff Belief That Defendant Killed in Crash

August 27th, 2018

The law in British Columbia has developed to recognize that people witnessing a crash can be compensated in certain circumstances if the event causes psychological injury to them.  While PTSD is a common diagnosis the law developed using the term “nervous shock” and the following principle as been applied in BC

[17]         In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23]         The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24]         As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, noting ICBC agreed to pay damages to a Plaintiff who developed PTSD after a collision based on the mistaken belief that the Defendant was killed.  It is worth noting that this case involves a Plaintiff and Defendant who were both involved in the crash, as opposed to a bystander, but the circumstances are such that the Plaintiff did not suffer any harm from the forces of the crash themselves or concern for their well being but rather solely based on their concern for the Defendant.

In the recent case (Lutzke v. Beier) the Plaintiff was a conductor operating a train and the Defendant pulled her vehicle into the Plaintiff’s path.  A collision occurred and the Defendant accepted fault .  The Plaintiff “thought for a time that the driver had been killed and that there had been a child in the vehicle who was either killed or seriously injured.  As it turned out, Ms. Beier was not killed and there had been no one else in the vehicle.”.

The plaintiff advanced claims for various heads of damages which were ultimately not successful.  ICBC was persuaded, however, to pay damages for the PTSD the Plaintiff suffered as evidenced by the following passage in Mr. Justice Milman’s reasons for judgement:

[2]            Liability for the accident has been admitted.  It is common ground that Mr. Lutzke developed post-traumatic stress disorder (“PTSD”) as a result of the accident and that he has since recovered sufficiently to return to work full time.  Despite his return to work, however, Mr. Lutzke says that he continues to suffer from increased anxiety and remains vulnerable to a relapse of PTSD, particularly if he experiences another traumatic event.

[3]            The parties have agreed on the quantum of all but two of the heads of damages claimed.  What remains in issue is Mr. Lutzke’s entitlement to damages for: (a) future loss of income earning capacity, including future pension benefits; and (b) the cost of future care.

 


$170,000 Non-Pecuniary Assessment for Chronic Physical and Psychological Injuries

August 22nd, 2018

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

In today’s case (Niessen v. Emcon Services Inc.) the Plaintiff was involved in a serious highway collision in 2013.  The Defendants accepted fault.  The crash resulted in a multitude of injuries to the Plaintiff, many of which had a poor prognosis for further recovery.  In assessing non-pecuniary damages at $170,000 Mr. Justice Brundrett provided the following reasons:

[212]     I am satisfied on the basis of all of the evidence that the plaintiff’s headaches, tinnitus, cognitive difficulties, sleep disruption, anxiety, and depression were caused by the motor vehicle accident on October 20, 2013. As a result of the accident, the plaintiff also sustained various musculoligamentous injuries to the neck and lower back which, though they persisted for an extended period of time, have now largely resolved. However, the tinnitus, headaches, depression, anxiety, sleep disruption, and cognitive problems are ongoing and chronic.

[213]     The plaintiff’s symptoms diminished his ability to operate at the same high level in the plumbing and heating business, caused him to fail his advanced gas fitter course, and led to drastic changes in his personality and behaviour. I accept that his injuries have generally reduced the plaintiff’s enjoyment of life including his social, recreational, and employment pursuits.

[214]     The multiplicity of the plaintiff’s chronic injuries creates difficulties for treatment going forward. For instance, Dr. Prout indicated that he would be very surprised if treating the headaches removed the tinnitus. There is some possibility for treatment of the plaintiff’s depression symptoms through medication or further cognitive behavioural therapy, but I accept the consensus of medical opinion that the plaintiff’s symptoms are now well-established, and while further treatment is possible it cannot be said that such treatment will probably be effective.

[215]     The descriptions of third parties and the plaintiff’s physicians accord with the plaintiff’s own account of the pre- and post-accident changes in his personality and behaviour.  The nature of the changes in the plaintiff’s personality and behaviour are such that they have adversely impacted his work-related abilities, as well as his earning capacity in future years.

[249]     I accept the plaintiff’s evidence that he suffered headaches, tinnitus, depression, social withdrawal, sleep disruption, cognitive problems including an inability to concentrate and impaired memory, anxiety, and symptoms consistent with PTSD as a result of his motor vehicle accident. Most if not all of these symptoms are chronic. The plaintiff’s neck and back pain persisted for longer than usual, but I accept that those injuries are now resolved. There is no evidence that his headaches, depression, cognition problems, and tinnitus were pre-existing conditions. I find that, apart from the neck and back pain, it is unlikely that the plaintiff will fully recover from any of the above mentioned injuries.

[250]     I find that the plaintiff’s symptoms had a significant impact on his social, recreational, and employment-related functioning, his emotional well-being, and his enjoyment of life. His symptoms also affected his personality, work ethic, and general attitude toward life.

[251]     There has been a fair amount of discussion among the experts and between counsel as to whether the plaintiff qualifies for a diagnosis of mild traumatic brain injury or concussion. There is disagreement about whether he qualifies for such a diagnosis, though he certainly has lingering symptoms of a kind that are sometimes associated with a concussion.

[252]     I agree with plaintiff’s counsel that while certain diagnoses or labels may assist in the analysis, the focus remains on the plaintiff’s symptoms, their endurance, and their overall effect upon the plaintiff’s life. As noted in Bricker at para. 123:

[123] I would add, however, that in assessing Ms. Bricker’s claim for damages, the issue for the court is not so much the label or diagnosis attached to a particular condition, but rather the extent to which the condition has affected a plaintiff in his or her social, recreational and employment pursuits (see Bagnato v. Viscount, 1995 CanLII 418, [1995] B.C.J. No. 2752 at paras. 28-29, … (S.C.)).

[253]     Having regard to the precedents cited before me, the nature and severity of the plaintiff’s symptoms in this case, his age, and the guarded possibilities for improvement, I would assess general damages at $170,000.


BC Supreme Court Gives Scathing Reasons Rejecting ICBC Doctor as “Advocate”

August 17th, 2018

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, holding a defence expert witness report as inadmissible due to advocacy.

In today’s case (Tathgur v. Dobson) the Plaintiff was injured in two separate vehicle collisions.  Fault was admitted for both by the Defendants.  In the course of the lawsuit the Defendants had the Plaintiff assessed by a physician who provided an opinion minimizing the Plaintiff’s injuries and their connection to the collisions.  In finding the opinion inadmissible and worth no weight Madam Justice Warren provided the following harsh reasons calling the doctor an “advocate” for the defence:

[93]         The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence.  If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of “qualified expert”.

[94]         Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48.  The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence.  For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.

[95]         As noted, Dr. Grypma’s opinions rested on five primary footings.  The second and third footings concerning Dr. Grypma’s rear-end accident theories are themselves opinions for which no foundation was expressed in the reports.  The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy.  However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views.  When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident.  He did not say when he attended these courses.  He did not identify the entities or institutions that offered the courses or even their subject matters.  He did not identify who these others were who agreed with him.  He also said that he relied on the conclusions of two professors.  He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other.  He acknowledged not having referred to any scientific publication supportive of this opinion.

[96]         In the circumstances, it is not possible to evaluate the soundness Dr. Grypma’s rear-end accident theories or even determine whether they fall within the scope of his expertise.  More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence.  Any doubt about that was removed by Dr. Grypma’s response to being provided with a more complete set of Mr. Tathgur’s clinical records, which undermined another of the foundational footings for Dr. Grypma’s opinion.

[97]         It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur’s medical records, including Dr. Manga’s clinical records and the 2009 MRI, before he wrote his first report in 2011.  It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed.  In other words, he knew that relevant records existed.  While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur’s complaints.

[98]         Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this.  Dr. Manga’s handwritten clinical records are not easy to read but the words “pain neck, low back” are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur’s back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms.  In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga’s records were not legible and he said he had to “go on Mr. Tathgur’s memory as [he found] the family physician’s records were not helpful”, yet he went on to specifically note that the family physician’s records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words “pain neck, low back” and the sketch appear.  He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.

[99]         Again, Dr. Manga’s records are not easy to read.  It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed.  However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views.  He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.

[100]     Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident.  Again, by this time he also had Dr. Manga’s clinical records, which clearly indicated complaints of pain on the day after the first accident.

[101]     For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence.  His evidence is inadmissible as a result.  Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight.  Further and in any event, as discussed below, I accept Mr. Tathgur’s evidence that he did have significant pain the day after the first accident.  Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma’s core opinion and, for that reason alone, I would give his opinion no weight.


Plaintiff Must “Live With The Consequences” For Failing to Beat Formal Settlement Offer at Trial

August 17th, 2018

Failing to beat a defence formal settlement offer at trial can bring serious financial consequences.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating exactly this.

In today’s case (Gill v. McChesney) the Plaintiff was injured in a vehicle collision and sued for damages.  Prior to trial the Defendant made two formal settlement offers, the second of which was $208,750.  The Plaintiff rejected this and proceeded to trial where she sought “damages in excess of $1 million“.  The trial result was not nearly so favourable with damages being assessed at $87,250.

The Defendant sought to strip the Plaintiff of all of her costs post their formal settlement offer.  This would result in a swing in the tens of thousands of dollars.  The Court granted this request noting that while it may substantially diminish the Plaintiff’s recoverable damages she must “live with the consequences” of running the trial.  In reaching this decision Mr. Justice Abrioux provided the following reasons:

[54]          When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

[55]         While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

[56]         Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

[57]         As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

[47]           But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

[58]         In my view, that is what occurred in this case.

[59]         Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.