ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding damages for chronic pain following a motor vehicle collision.

In this week’s case (Azuma-Dao v. MKA Leasing Ltd.) the Plaintiff was involved in a 2008 rear-end collision.  Fault was admitted by the rear motorist.  Following the crash the Plaintiff suffered from chronic pain from soft tissue injuries possibly with “spinal facet joint or disk pathology”.  Her injuries compromised her ability to work in her chosen profession and, despite room for improvement, were expected to continue to cause problems for the foreseeable future.  In assessing non-pecuniary damages at $65,000 Madam Justice Humphries provided the following reasons:

[80] The plaintiff’s life has changed substantially as a result of the accident, and she suffers chronic pain.  From a fit, very active person, she has become withdrawn, moody, and deconditioned.  Her friends and her husband find her to be a different person, no longer active and happy go lucky.  She endures pain every day, but she works very hard at her exercises.  Her work with disabled adults was very important to her and required a fit strong body, which she no longer has.  Despite her withdrawal, she maintains a social life, but the activities she and her friends do are now more sedentary.

[81] I set her non-pecuniary damages at $65,000

Another point of interest was the Court’s discussion of the Adverse Inference principle.  In the course of the lawsuit the Plaintiff obtained and produced clinical records from her GP.  She did not call the doctor in support of her case.  The Defendant argued that an adverse inference should be drawn but the Court refused to do so finding that it was open to the Defendant to call this physician if they wished.  Madam Justice Humphries provided the following reasons:

[45] I will mention the issue of adverse inference at this point.  Since all of Dr. Frank’s clinical notes were provided to the defence and Ms. Azuma-Dao admitted the relevant portions on cross-examination, I am not prepared to draw an adverse inference against the plaintiff for failing to call Dr. Frank, who was of course available to either side and was in fact on the defendants’ witness list.  However, since the defence gained what they required on cross-examination of the plaintiff, they cannot be faulted either for not calling Dr. Frank.

Adding to this site’s ICBC Case Summary Archives, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, assessing non-pecuniary damages for a traumatic brain injury sustained in a BC vehicle collision.

In this week’s case (Meghji v. Lee) the Plaintiff was struck by a vehicle while walking in a marked cross-walk in 2003.  Both the Defendant driver and BC Ministry of Transportation and Highways were found at fault for the crash.  The former for failing to keep a proper lookout while driving, the latter for designing the intersection at question with inadequate overhead lighting.  The driver was found 90% at fault with the Ministry shouldering 10% of the blame.

The Plaintiff suffered a fracture near her left shoulder, left elbow, ankle, knee and a traumatic brain injury.   The consequences of these were expected to cause permanent dysfunction.  In assessing non-pecuniary damages at $125,000 Mr. Justice Johnston provided the following reasons:

[270] Based upon the evidence of Dr. Ali and Mr. Brozak of the substantial change noted in Ms. Meghji during this time, as supported by similar observations from Ms. Chauncey’s and Ms. Wyeth’s description of Ms. Meghji’s abilities in her math class and as a teaching assistant before the accident, I conclude that Ms. Meghji has more likely than not suffered a brain injury in the accident, and that the combination of the effects of the brain injury and the depression and chronic pain disorder, which I also find was caused by the accident or flows from injuries suffered in the accident, are so inextricably intertwined that they cannot possibly be disentangled.

[271] In all of the circumstances, the defendants are ordered to pay Ms. Meghji $125,000 for non-pecuniary damages for pain, suffering, and loss of amenities and enjoyment of life.

This case is also worth reviewing for the Court’s application of the ‘adverse inference’ principle.  In the course of the lawsuit the Plaintiff’s lawyers had her assessed by a neurologist.  The neurologist did not tender evidence at trial.  Mr. Justice Johnston used his discretion to draw an adverse inference in these circumstances finding that the privately hired doctor likely did not have helpful evidence to give in support of the Plaintiff’s claim.  The court provided the following reasons:

Reasons for judgement were released last month by the BC Supreme Court, Duncan Registry, assessing damages for PTSD and chronic headaches following a motor vehicle collision.

In last week’s case the Plaintiff was involved in a 2005 collision.  Fault for the crash was admitted focusing the trial on the value of the claim.   The Plaintiff suffered from some pre-existing difficulties including depression and anxiety.  The collision caused new injuries including pain, headaches and PTSD.  Mr. Justice Rogers assessed non-pecuniary damages of $90,000 and then made a modest reduction to take the pre-existing condition into account.  In assessing damages the Court provided the following reasons:

[32] Turning to the plaintiff’s injuries, the overall weight of the evidence paints a clear picture: before the traffic accident the plaintiff had some depression and she was sometimes anxious. The breakdown of her marriage and the emotional upheaval and fiscal uncertainty that flowed from that breakdown fuelled her depression and anxiety. Both conditions were sufficiently active as to prompt her to obtain medical attention. The plaintiff’s depression and anxiety were, therefore, present and active maladies before the accident. The plaintiff did not, however, suffer from post-traumatic stress disorder or from pain in her neck, jaw and face, and the plaintiff did not suffer from migraine or neuralgic headaches. The plaintiff was not fatigued and her ability to function in everyday life was not limited in any significant way. After the accident the plaintiff does now, and will in the future continue to, suffer from myofascial pain in her face and jaw. She does, and will continue to, suffer from periodic migraine and neuralgic headaches. Her neck will be sore after physical activity. She will be fatigued and socially withdrawn. These changes in her life have deepened her depression and made her more susceptible to anxiety…

[34] That said, the plaintiff’s pain, headaches and post-traumatic stress disorder were not features of her life before the accident and there was no measurable risk that, absent the accident, they would have become features of her life. Likewise, the plaintiff’s difficulties with memory and concentration were not a problem before the accident. Although the plaintiff argued that these latter problems stemmed from a minor traumatic brain injury, I find that that they are, in fact, a product of the effect on her mentation of pain, depression and anxiety.

[35] On an overall assessment of the whole body of the evidence at trial, I am satisfied that the plaintiff’s claim for non-pecuniary damages should be reduced by a relatively modest amount in order to accurately reflect her pre-existing emotional condition. I fix that reduction at 10 percent of the total.

[36] I find that were it not for her pre-existing condition, I would have fixed the plaintiff’s non-pecuniary damages at $90,000. I find that after subtracting the pre-existing condition, the plaintiff is entitled to judgment for general damages of $81,000.

This judgement is also worth reviewing for the Court’s discussion of principle of adverse inference.  The Plaintiff did not call her family physician in support of her claim.  ICBC argued that the Court should draw an adverse inference as a result.  Mr. Justice Rogers refused to do so and in dismissing ICBC’s argument the Court provided the following comments:

[31] I also accept the opinions of the plaintiff’s medical treaters. I am not worried about the lack of evidence from the plaintiff’s family physician. It was he who referred the plaintiff to specialists, and it was those specialists who diagnosed and treated the plaintiff’s accident-caused symptoms. The family physician’s evidence would, in my view, likely have consisted of little more than confirmation that the specialists were engaged and progress was made under their care. As such, I am confident that the family physician’s evidence would have added little new into the mix.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.

In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision.  He was faced in an awkward position when his vehicle was struck and he sustained injuries.  Fault for the crash was admitted focussing the trial on assessing damages.

Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.

The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome.  The Court accepted that the Plaintiff would likely not work in his profession again.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:

[117]     I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….

[155]     The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.

This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement.  The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.

Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle.  Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records.  The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called.  The Defence asked the Court to draw an adverse inference.  Mr. Justice Pearlman refused to do so and provided the following helpful reasons:

[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.

When a Plaintiff is cross examined in the trial of a personal injury claim can opinions from medico-legal reports from prior litigation be introduced into evidence without complying with the notice requirements set out in the Rules of Court?  Reasons for judgement were recently released by the BC Supreme Court addressing this issue.

In the recent case (Hosking v. Mahoney) the Plaintiff was injured in three separate motor vehicle collisions.  The first collision was in 2000, the second in 2001 and the third in 2004.

The Plaintiff advanced claims for compensation as a result of all three collisions.  In the course of the first two claims the Plaintiff’s physician authored a medico-legal report in 2003 addressing the extent of her injuries.  The Plaintiff settled both these claims prior to her third collision.

The claim arising from the third collision did not settle and proceeded to trial.  At trial the Defendant introduced the prior medico-legal report during cross examination.  The Court allowed this and further permitted the previous opinion to go into evidence even though the usual notice requirements for the introduction of opinion evidence were not complied with.  In permitting this evidence to be introduced Mr. Justice Warren provided the following reasons:

[171] I found the medical opinion of Dr. Gurdeep Parhar, the plaintiff’s attending physician for the first two accidents and the author of the medical/legal report of March 10, 2003, important and difficult to resolve with the evidence and submissions of the plaintiff that she had largely recovered prior to the February 2004 accident.  This evidence was entered by the defendant when cross-examining the plaintiff and was not rebutted or varied by Dr. Parhar who was not called to testify.  The court is entitled to draw an adverse inference when a witness who could provide relevant evidence on an issue before the court, is not called.  In my view the defendant was entitled to rely upon the letter and opinion of Dr. Parhar without providing the usual notice.  It was a report prepared for and at the request of the plaintiff and it was identified and portions adopted by the plaintiff in cross-examination.  The plaintiff had the opportunity to call Dr. Parhar or evidence to rebut the opinion or to object to its introduction prior to its use in cross-examination.

Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.

By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.

The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.

1.  In Trust Claims

Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.

In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

(Please note the case discussed here was overturned by the BC Court of Appeal in May, 2010)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry, (Poirier v. Aubrey) awarding a Plaintiff just over $220,000 in total damages as a result of a BC Car Crash.

The Collision occurred in 2006 and was a rear-end crash.  The Plaintiff suffered from some pre-existing injuries but the trial judge found that the Plaintiff did not have a ‘relevant’ pre-existing condition.  Mr. Justice Stewart concluded that the accident caused fibromyalgia and awarded $60,000 non-pecuniary damages.  In arriving at this figure Mr. Justice Stewart noted the following:

there was no relevant significant pre-existing condition and the doctors may differ as to what label should be applied to the plaintiff’s condition – fibromyalgia, fibromyalgia-like syndrome, chronic pain condition – but the fact is that she suffers from chronic widespread pain that is, for her, debilitating and with respect to which the prognosis is guarded.  An “optimal fibromyalgia based treatment protocol”, including biofeedback, is recommended and there is a real and substantial possibility, bordering on likelihood, that her pain and discomfort will be relieved and her functioning improved.  (Exhibit 5 Tab B Page 6).  But no “cure” is in prospect…

I find as a fact that the plaintiff’s persistent, consistent and, ultimately, chronic pain and suffering arose only immediately after the September 5, 2006 motor vehicle accident.  The schism in the expert medical evidence placed before me was not as to whether the September 5, 2006 trauma was a materially contributing cause of the plaintiff’s ongoing chronic pain condition but as to whether it so contributed by exacerbating a pre-existing chronic pain condition or by simply triggering a chronic pain condition.  It is now a fact that there was no significant pre-existing condition.  The only available conclusion in the case at bar is that but for the defendant’s negligence on September 5, 2006 the plaintiff would not be burdened with the chronic pain condition that has been her lot since September 5, 2006.

[23] Soft tissue damage is the source of her problems.  I have kept Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) in mind.  I find that the plaintiff is one of that small percentage of people, well known to the law, whose pain and suffering continues long after science would say that the injured tissue must have healed.  I have cautioned myself about the need to be slow to rely on what are uncorroborated reports of long-standing pain and discomfort.  But, on the whole of the evidence I have decided that her complaints of pain are true reflections of a continuing injury and are not a product of desire by the plaintiff for things such as care, sympathy, relaxation or compensation and that she has used every ounce of willpower she has to overcome her problems and could not reasonably be expected to have achieved more by her own inherent resources or willpower.  (Maslen v. Rubenstein,supra, paragraphs 8 and 15).

[24] I turn to the future.

[25] To use language employed by Dr. Jaworski, the prognosis is “guarded”.  Taken together, the evidence of Dr. Hyams, Dr. Shuckett and Dr. Jaworski bottoms the conclusion that what is now in place – an ongoing, positive, pro-active approach, to echo Dr. Shuckett – means that there is a real and substantial possibility that significant improvement is in the offing.  To date, the plaintiff has sought help in such things as prescription drugs, chiropractic treatments, physiotherapy, massage, acupuncture and trigger point injections.  Only now is the plaintiff in the course of an organized effort to both alleviate her pain and discomfort to the extent possible and teach her techniques and methods of dealing with and surmounting her pain and discomfort.

[26] I turn to the assessing of non-pecuniary damages.  The plaintiff has been burdened thus far for 39 months.  Her prospects are not bleak, but guarded.  The level of the pain and discomfort she has endured was such that her life apart from work has been turned from one full of activity to one devoted to rest and recovery.  She is not housebound.  She drives a car for up to 20 hours a week and makes herself useful in the lives of her children.  The level of her pain and discomfort resulted in this woman – whom I am convinced is not a slacker and enjoyed her job in the world of insurance adjusting – being off work for six weeks, returning to work at half-time for two months and, ultimately, stopping work after having her employer cooperate in every way possible to reduce the demands of the job so that she could continue working.  That speaks volumes about her condition.  Additionally, the fact she actually enjoyed her work and has had it curtailed as a result of the defendant’s negligence must weigh heavily in the assessment of non-pecuniary damages.  I have considered the cases placed before me by counsel.  To track some of the language used in Knauf v. Chao, 2009 BCCA 605, I classify this as a case in which there is a real and substantial possibility that the plaintiff’s soft tissue injury will prove to be “permanent” but the degree of pain and discomfort cannot be considered to be “the most severe in nature” when compared with that of plaintiffs in other such cases.  Taking into account not just what I have said here but the whole of the evidence and all I have said thus far in these reasons for judgment, I award the plaintiff $60,000 by way of non-pecuniary damages.

This case was interesting for Mr. Justice Stewart’s very specific reasons setting out why he rejected many of the defence positions advanced at trial and also for the Court’s discussion of the law of adverse inference for failing to call a treating physician in an injury claim.

Reasons for judgment were released today by the BC Supreme Court, Prince George Registry, dealing extensively with Plaintiff credibility in ICBC Injury Claims.

In today’s case (Willing v. Ayles) 2 Plaintiffs were involved in a 2005 crash that was described as a ‘significant rear end collision causing some significant physical damage to the vehicle occupied by the plaintiffs‘

The court found that both Plaintiffs sustained injuries and non-pecuniary damages of $20,000 and $35,000 were made for various soft tissue injuries.

The lion’s share of this 43 page judgement focuses on the Plaintiff’s credibility.  I reproduce some highlights of the courts discussion on this topic below.   Anyone interested in seeing how BC Courts deal with Plaintiff credibility in ICBC injury claims in encouraged to read this judgment in full:

[75] For reasons which will become apparent these statements are demonstrably inaccurate and untrue.  Of more concern, they appear to be repeated consistently to create a particular impression, namely that she was far more active before the accident and that her injuries had restricted her activities and resulted in a major weight gain…

[153] I am satisfied that both Dr. Haskins and Dr. McKenzie suffered in the preparation of their reports and opinions from information that was, at best, exaggerated and inaccurate.

[154] This factor alone diminishes the value of their reports and opinions but when it is combined with the absence of evidence from either family doctor the difficulties become even greater.

[155] Ms. Willing struggled to fill the void created by the absence of her family doctor by repeatedly offering her own opinions on a wide variety of topics ranging from the reason for notes found in Dr. Scott’s clinical records to the cause of her weight gain after the accident.  These opinions, though revealing, are of extremely limited evidentiary value and do not supplement the actual medical evidence before the court.

[156] In the absence of medical evidence based on a proper foundation I am not prepared to accept Ms. Willing’s opinions as to causation.  To be clear, I am satisfied that, above all, Ms. Willing demonstrated a remarkable capacity to blame the collision in question for virtually everything which crossed her path.  This included attributing her weight gain to the accident, her move to Smithers, and complaints of headaches with orgasm which appears to have surfaced on March 21, 2007, approaching two years post-accident, and that of lower back and hip pain after sex which appears to have been reported to Dr. Haskins on February 11, 2008.

[157] This penchant for exaggeration and attribution appears to have been passed on to her husband who, at least in the reports of Dr. Haskins, attributes the change from his job as a mechanic to a salesman to the after effects of his injuries.

[158] Perhaps the most troubling aspect of the evidence in this case arises again in the reports and the opinion of Dr. McKenzie about the plaintiff, Kristina Willing.

[159] This report is replete with qualifications which make it clear that Dr. McKenzie’s opinion that her reported complaints were caused by the collision in question were based on the fact that she had recovered completely from previous injuries and she was asymptomatic from the degenerative disc condition prior to the accident.

[160] Those qualifications include the following –

(a)      For approximately 10 years following her last pregnancy however she had no significant back pain;

(b)      She was involved in a previous motor vehicle accident with some neck and right shoulder pain.  By her history the neck pain completely resolved although she had some mild residual shoulder pain;

(c)      The degenerative disc disease almost assuredly pre-existed but was minimally or completely asymptomatic.

[161] It seems clear that Dr. McKenzie’s opinion as to causation, even couched as it is on the various contributing factors, is based on his acceptance of her evidence of her health and condition prior to the accident.

[162] Clinical records produced apparently from the Glover Physiotherapist Corporation (Exhibit 3, Tab 10) contain an intake form dated April 9, 2002.  The symptoms recorded include neck problems, headache and problems with her right shoulder area.  After the initial assessment Ms. Willing is recorded as attending for three treatments – April 16, 2002; April 18, 2002; and April 25, 2002, before apparently discontinuing physiotherapy.

[163] A second intake form on February 17, 2004 references an “old mva” and contains a similar pain diagram to that found in the earlier intake form.  This assessment goes on to record constant pain and a series of difficulties mainly centred on her right shoulder.

[164] On this occasion Ms. Willing apparently attended four physiotherapy treatments over a period of some 16 days from February 21, 2004 to March 9, 2004 before discontinuing her attendances.

[165] During the course of her evidence Ms. Willing was insistent that she recovered completely from these symptoms and that they had completely resolved after March 9, 2004.

[166] Coincidently her claim arising from the 2002 motor vehicle collision was settled on February 27, 2004.

[167] The third intake form is dated August 19, 2005 and follows the present collision.  The pain diagram in this case covers a somewhat larger area of the neck and upper back and includes the lower back.

[168] On this occasion Ms. Willing apparently attended on some 26 occasions from August 29, 2005 until April 7, 2006 before apparently discontinuing the treatments.

[169] Upon arriving in Smithers Ms. Willing began attending at the Bulkley Valley Chiropractic Clinic.  These attendances began on August 9, 2006 and concluded on October 18, 2006 after some 16 visits which apparently included two acupuncture sessions.

[170] On July 27, 2007 Alpine Physiotherapy in Smithers completed an initial assessment form which records, amongst other information, that she had just returned from a trip to France.

[171] The physiotherapist, Graham Pollard, notes in a letter dated July 14, 2008 that he has treated her on five occasions since her initial assessment.

[172] What is interesting about this entire sequence of events in Smithers, I hesitate to describe it as a pattern, is the gaps in what she now claims are necessary therapy treatments.

[173] When Mr. Pollard refers to five treatments after her initial assessment he is not speaking about the July 27, 2007 initial assessment, because after that assessment she did not attend a single physiotherapy treatment until she returned for another initial assessment on June 3, 2008, some eleven months later.

[174] Dealing initially with the initial assessment on July 27, 2007, this appointment took place immediately after the plaintiffs retained counsel to pursue the present claims.  The writs were prepared and signed on July 25, 2007, and they were filed and these actions commenced on July 26, 2007.  The next day she attended Alpine Physiotherapy.

[175] On June 3, 2008 she returned, was assessed and began a series of five treatments.  This followed her attendance at her examination for discovery some weeks before.

[176] Once again I am forced to conclude that this is not a pattern that supports the recital of symptoms and problems presented by Ms. Willing in her evidence.

[177] The adverse credibility findings in this case go to the heart of the factual underpinnings of Dr. McKenzie’s opinion.

[178] The absence of evidence from Dr. Scott and, indeed, from the time of the accident until Ms. Willing first saw Dr. Haskins leaves the court without any medical assessment from the time of the accident until nearly two years later.  More importantly, it leaves the court without any evidence from her doctor concerning the extent of her recovery at the time of the present accident.

[179] There is, in the body of evidence before the court, little in the way of objective evidence let alone convincing evidence of any significant injury.

[180] A medical/legal report or evidence from Dr. Scott may have provided a clearer picture and the basis for a factual finding of continuing pain and discomfort related to the accident; but we do not have the benefit of any such evidence.

[181] A decision must not be based on speculation, supposition or facts not placed in evidence.  While this may possibly result in Kristina Willing being under-compensated she has only herself to blame.

[182] The absence of evidence from Dr. Scott in this case fulfills the circumstances necessary for the drawing of an adverse inference.  The inference in this case is, that if his evidence had been called, Dr. Scott’s evidence would not have supported the ‘complete recovery’ scenario found in Ms. Willing’s evidence and on which, to a significant extent, Dr. McKenzie’s opinion is based.

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.

Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.

Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.

In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

In reasons for judgement released today Mr. Justice Holmes awarded an injured Plaintiff a total of $8,500 in damages as a result of injuries sustained in a 2005 BC car accident that occurred in 100 Mile House.

The Plaintiff was a passenger at the time.  His wife was driving.  The vehicle left the roadway and rolled onto its roof.  Liability for the accident was admitted by ICBC but the issue of damages was contested.

The Plaintiff led medical evidence that he suffered from ‘mechanical lower back pain’ amongst other injuries as a result of this crash.  He advanced a ’significant claim of loss of earning capacity’.

The cause of the Plaintiff’s back pain was at issue at trial.  The court largely rejected the Plaintiff’s claim and found that the Plaintiff had pre-existing back pain which was exacerbated as a result of the collision.   The court found that the Plaintiff’s exacerbation ‘either resolved or significantly diminished within a few months of the accident.  The Plaintiff’s more serious complaints of back pain and spasm did not occur until months later…‘ 

The court summarized its findings at paragraph 48 as follows:

[48]            I do however accept the plaintiff did receive some injury in the motor vehicle accident of November 15, 2005.  That injury was an exacerbation of a long-standing pre-existing back injury, and he is entitled to non-pecuniary damages for the exacerbation injury which I consider was resolved within approximately a year of the November 15, 2005 motor vehicle accident.  He was restricted for a month or two following the accident in his ability to lift weights and for several months on a diminishing or sporadic basis and he was troubled by prolonged sitting or immobility.  Treatment was by continuing chiropractic and exercise.  He was able to perform his work and operate his business with minimal interference.  I assess the plaintiff’s damages at $8,500, inclusive of minimal interference with earning ability or loss of business income.

The Plaintiff did not call his treating chiropractor and his family physician to give evidence.  The court was critical of this and it appears that this was a main factor which fueled the court’s decision.  The court highlighted this fact as follows:

[37]            I conclude the plaintiff has failed to prove on a balance of probabilities the back pain he experienced after commencing the above-ground work in erecting the towers commencing in the fall of 2006 was caused or contributed to by injury he received in the motor vehicle accident of November 15, 2005.

[38]            Neither Dr. Carson, the chiropractor, nor Dr. Geerts, the family physician, gave evidence or tendered reports despite the very contentious causation issue in this action.  Dr. Carson’s records recording the plaintiff’s history and the treatment he received were highly contradictory to the plaintiff’s evidence and the explanations of the plaintiff make no sense even with allowance that he is a poor historian.

[39]            I conclude the plaintiff had an existing problem of back pain, symptomatic at the date of the motor vehicle accident, for which he was receiving chiropractic treatments prior to the subject motor vehicle accident of November 15, 2005.  I accept the motor vehicle accident exacerbated that pre-existing condition for a period of time, and the symptoms were manifested when lifting weight and by postural discomfort caused from prolonged sitting or immobility.

If you are advancing and ICBC claim and have pre-existing injuries it is a good idea to consider calling your treating doctor to give evidence to explain your pre and post accident status to the court.  Failing to do so may result in an ‘adverse inference’ where the court may conclude that your treating doctor would have given evidence damaging to your case.