ICBC Law

As I’ve previously written, a common occurrence after a car crash is the onset of pain in a pre-existing but asymptomatic condition.  When this occurs it is no defence for the at-fault party to argue that the pre-existing condition is more responsible for the symptoms than the crash.  This principle was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.

In today’s case (Neumann v. Eskoy) the Plaintiff was involved in a rear-end collision in 2006.  The Defendant admitted fault.   The trial focused on the value of the Plaintiff’s claim.

Prior to the crash the Plaintiff has osteoarthritis in his hip and asymptomatic degenerative changes in his spine.  After the crash these conditions became painful and the Plaintiff went on to develop a chronic-pain syndrome.  The Defendant hired a doctor who gave evidence that the car crash was not the main cause of the Plaintiff’s chronic pain, rather it was mostly the fault of the pre-existing degenerative changes.

The Defence lawyer then argued that the Plaintiff’s compensation should be relatively modest to account for this pre-existing condition.  Mr. Justice Brooke disagreed and went on to award the Plaintiff $90,000 in non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his chronic pain syndrome.  In doing so the Court provided the following useful comments:

[13]         I also refer to the decision of the B.C. Court of Appeal in B.P.B. v. M.M.B., 2009 BCCA 365 where Mr. Justice Chaisson, at paragraphs 42 and 43, says this:

[42]      In my view, the trial judge in this case failed to determine whether the plaintiff’s injury was divisible or indivisible. She appears not to have distinguished “between causation as the source of the loss and the rules for the assessment of damages in tort” as mandated by the Supreme Court of Canada in para. 78 of Blackwater. The liability question is whether the conduct of the defendant caused injury. The assessment of damages requires a determination whether the injury derived from multiple sources and whether it is divisible. If it is, responsibility is allocated to the individual sources of the injury.

[43]      It the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim’s original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all torfeasors who caused or contributed to the injury are 100% liable for the damages sustained by the victim.

See also the decision of the B.C. Court of Appeal in Bradley v. Groves, 2010 BCCA 361, which was decided after the trial of this action.

[14]         I am satisfied that before the accident and despite the asymptomatic degenerative conditions, the plaintiff was not only functioning adequately, but also at a very high physical level. But for the accident and the injury sustained to his neck, the plaintiff would not have sustained the chronic pain syndrome from which he now suffers. I am satisfied that the plaintiff’s long and commendable work history was interrupted by the injury sustained by him in the accident, and that despite the plaintiff’s best efforts he continues to suffer from chronic pain which is moderated somewhat by medication. I am also satisfied that the medication itself has an adverse aspect in addition to its therapeutic effect in that the plaintiff now suffers from sleep apnea and fatigue. Pain and fatigue on a continuing or chronic basis can and do dramatically impair the quality of life and the enjoyment of life. The work that Mr. Newmann now does is well paying and secure, but Mr. Newmann worries that he may not be able to continue indefinitely. Worry is burdensome and can also impair the enjoyment of life. I find that an appropriate award for non-pecuniary damages is $90,000.

British Columbia has a great public heath care system.  If you are sick or injured you can see a doctor, if diagnostic tests are prescribed they are covered.  If surgery is required the public health care system will take care of that as well.

As great as our system is, however, it is not without its flaws.  One of the biggest shortcomings is delay. Many people involved in serious injury claims quickly come to this conclusion.  If you need to see a specialist the wait can be long.  Delays can be equally long for diagnostic tests and surgical intervention.  Some people with means prefer not to wait and seek out private health care services instead.   Where there is a need the market tends to fill it and some entrepreneurial companies have sought to fill this void and offer British Columbian’s services on a private basis.

There is a tension, however, between the Government of BC and these private health care facilities.  These tensions were demonstrated in reasons for judgement released today by the BC Court of Appeal.

In today’s case (Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), the Province of BC sought a Court order allowing a government inspector  to access the premises of the Cambie Surgeries Corporation and to perform audits to see if violations of the Medicare Protection Act are taking place through the clinics private services.

At the trial level the BC Supreme Court ordered an injunction requiring these audits to take place.  The Cambie Medical Clinic appealed arguing that provisions of the BC Medicare Protection Act are unconstitutional because they “have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner“.

Ultimately the BC Court of Appeal set aside the trial decision finding that the government should have applied to a justice of the peace for a warrant to inspect Clinic rather than seeking an order through a lawsuit. Before reaching this verdict the BC Court of Appeal set out the following provisions which restrict the availability of private health care services in BC and the argument alleging this restriction is unconstitutional:

[4]             The Medicare Protection Act governs the administration of British Columbia’s Medical Services Plan (the “Plan”), the primary public health insurance scheme in the province.  Most residents of B.C. are enrolled as beneficiaries and most physicians are enrolled as practitioners entitled to payment for their services under the Plan.  A number of the provisions of the Act are relevant to the appeal.  Rather than setting them out in the body of these reasons, I have appended the relevant portions of the statute.

[5]             In the normal course, practitioners bill the Commission for services performed for beneficiaries, and the Commission pays the practitioners in accordance with its established payment schedules.  Section 14 of the Act allows enrolled practitioners to opt out of the normal payment arrangements and to bill patients directly.

[6]             Unless a physician has opted out or is not enrolled in the Plan, s. 17 prohibits him or her from charging a beneficiary for the provision of a service covered by the Plan.  Where a physician has opted out or is not enrolled, s. 18 prohibits him or her from charging a patient more than the amount that the Plan would pay for a medical service.

[7]             Together, ss. 17 and 18 greatly restrict the scope for medical practitioners to bill patients directly for their services.  Section 18 also prohibits “extra billing” – i.e., billing a patient for an amount beyond that which the Plan pays for a service.

[8]             The clinics admit that they have engaged in practices that would violate the statutory prohibitions against direct and extra billing if those prohibitions are constitutional.  Some patients have signed “acknowledgement forms” confirming their understanding that they are being billed for amounts in excess of those provided for under the Plan.

[9]             The clinics contend, however, that ss. 14, 17 and 18 of the Act are unconstitutional.  They allege that those provisions have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner.  Relying primarily on Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, the clinics argue that the impugned provisions of the Medicare Protection Act violate the rights of patients to life, liberty, and security of the person in a manner that is not in accordance with principles of fundamental justice, contrary to s. 7 of the Canadian Charter of Rights and Freedoms.  They have commenced an action seeking a declaration that the impugned provisions are unconstitutional.

It appears that this battle will continue to play out before the Courts.  It will be welcome, for both patients and health care practitioners alike, to have certainty in this area of law so that British Columbians can better know what healthcare care options are available to them when they are in need of care.

Further to my previous articles on this topic, when suing ICBC for compensation for injuries sustained in a hit and run accident (Unidentified motorist claims) one of the requirements under Section 24 of the Insurance (Vehicle) Act is for the claimant to make “all reasonable efforts to ascertain the identity of the unknown driver“.  If a claimant fails to do so their claim for compensation against ICBC will fail.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.

In this week’s case (Gonclaves v. Doe) the Plaintiff was involved in a motor vehicle collision on Highway 1 in British Columbia in 2006.  The Plaintiff was driving a bus at the time of the crash.  His vehicle was struck by another vehicle.  After the collision the Plaintiff failed to obtain identifying information from the other motorist.  In the days and weeks following the crash the Plaintiff did not report the incident to the police or ICBC, instead he assumed his employer would take care of this.  The Plaintiff then sued ICBC under section 24 of the Insurance (Vehicle) Act seeking compensation for his personal injuries.  ICBC opposed the lawsuit and asked that the case be dismissed.

Mr. Justice Harris agreed with ICBC that the Plaintiff failed to take reasonble efforts to identify the unknown motorist.  As a result the lawsuit was dismissed.  In doing so Mr. Justice Harris provided the following useful summary of the requirement for claimants to make “all reasonable efforts“:

[4]             Under s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) may be the nominal defendant and liable for damages to the plaintiff for damages from a motor vehicle accident where the identities of the owner and driver of the other vehicle involved are not ascertained.

[5]             ICBC will only be liable as nominal defendant if the plaintiff has made “all reasonable efforts to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be”: Insurance (Vehicle) Act, s. 24(5).

[6]             The appropriate test to determine whether all reasonable efforts have been made is: Did the plaintiff do all that he would have to identify the other parties involved if he intended to pursue legal action against them, if ICBC were not potentially liable under s. 24 of the Insurance (Vehicle) Act?: Leggett v. Insurance Corporation of British Columbia (1992), 72 B.C.L.R. (2d) 201 (C.A.) at para. 13.

[7]             The requirement to make all reasonable efforts is not limited to the immediate aftermath of the collision. To satisfy this test, the plaintiff must have made all reasonable efforts at the scene of the collision to identify the other parties. The plaintiff must also have made all reasonable efforts to identify the other parties in the days and, possibly weeks, that followed the collision: Slezak v. ICBC, 2003 BCSC 1679, at para. 42.

[8]             “All reasonable efforts” does not mean “all possible efforts”. “Reasonable” means “logical, sensible and fair,” and does not mean “absurd, whimsical or unwarranted”: Slezak at para. 40.

[9]             Similarly, “not ascertainable” does not mean “could not possibly be ascertained,” but instead means “could not reasonably be ascertained”: Leggett  at para. 11.

[10]         The plaintiff is not required to take an action to identify the other parties that, while possible, is “highly unlikely” to produce any result: Liao v. Doe, 2005 BCSC 431, at para. 14.

[11]         “All reasonable efforts” includes a subjective aspect. In deciding whether all reasonable efforts were made, consideration must be given to the plaintiff’s physical and mental state at the time of the collision, and the circumstances surrounding the collision: Holloway v. I.C.B.C. and Richmond Cabs and John Doe, 2007 BCCA 175, at para. 13.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying Rule 3-2(1) of the New BC Supreme Court Civil Rules.  This rule permits the Court to renew a Notice of Civil Claim before or after it expires.  Today’s case is the first I’m aware of applying this new rule.

In today’s case (Stuart v. Patterson) the Plaintiff was injured in two consecutive instances while engaging in exercises known as “dead-lifts”.  These exercises were apparently being supervised by the Defendant.  The Plaintiff started two separate lawsuits against the Defendant alleging that he was at fault for her injuries.  The Plaintiff’s lawyer failed to serve the Writ of Summons within the first year after filing.  The Plaintiff brought an application to renew the lawsuit relying on Rule 3-2(1) of the New Rules of Court.

Madam Justice Fitzpatrick found that the Plaintiff’s lawyer acted reasonably in taking steps to renew  the lawsuit after learning it expired and that there was little prejudice to the Defendant and accordingly renewed the filed documents for a further two months permitting them to be properly served on the Defendants.  In doing so the Court seemed to accept that Rule 3-2(1) reads almost identically to the old Rule 9(1) and that the precedents developed under the old rule remain in force.   Madam Justice Fitzpatrick summarized the applicable law as follows:

[10]         The leading case on the test to be applied on this application is Bearhead v. Moorhouse, [1977] B.C.J. No. 1324, (1977), 3 B.C.L.R. 81 (S.C.), upheld on appeal (1978), 5 B.C.L.R. 380. The test adopted by the Court of Appeal at that time requires the court to ask itself the basic question of “what is necessary to see that justice is done?”  In considering that question, the following factors are to be considered:

1.               Was the application to renew brought promptly?

2.               Did the defendants have notice of the claim before the writ expired?

3.               Did the defendant suffer prejudice?

4.               Was the failure to serve the writ attributable to the actions of the defendants?

5.               Was the failure to serve the writ attributable to the actions of the plaintiff?

[11]         Recent considerations of these factors are found in our Court of Appeal decisions of Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216.

[12]         It is clear from the authorities cited to me by both counsel that each case is to be decided on its particular facts.

[13]         Further, counsel for Ms. Stuart refers me to the statements from the Saskatchewan Court of Appeal in Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741, at p. 750, 65 D.L.R. (2d) 324, to the effect that failure to renew a writ is an “irregularity” and that “if the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant’s defence, then the writ should be renewed”: see Bearhead, BCCA at para. 8; Lowe v. Christensen (1984), 54 B.C.L.R. 88 (C.A.) at para. 13; Sutherland v. McLeod, 2004 BCCA 653, at paras. 28-29.

[14]         I accordingly consider the Bearhead factors:

A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.

Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.

In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.

The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.

In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.

The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.

In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:

[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).

In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.

Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).

Reasons for judgement were released today awarding a Plaintiff damages for post accident migraine headaches.

In today’s case (Ward v. Klaus) the Plaintiff was involved in a rear-end collision in Chilliwack, BC.  Fault was admitted by the rear-motorist focusing the trial on the value of the claim.

The Plaintiff suffered various injuries the most serious of which were post-traumatic migraine headaches.  These were so invasive that they required surgical intervention with the installation of a “neurostimulator” in the back of her head.  The Court provide the following summary of the Plaintiff’s surgeries:

[16]         In May 2008, the plaintiff consulted Dr. Kumar, a neurosurgeon in Regina, for an assessment on the suitability for neurostimulator implants.  She qualified and in September, at Regina Saskatchewan, a neurotransmitter was implanted in the back of her neck.  It had two leads and an external remote that connected the wires under her skin.  From September to mid-October 2008, she had two more operations in Regina and two more temporary implants were imbedded.  In December 2008, two permanent implants were installed in the back of her head in the same area as before.  To deal with the pain of the operation, she took more medication.

[17]         In January 2009, the plaintiff had permanent leads installed at the front of her head.

[18]         The implant battery has to be recharged, usually once a week.  She keeps it on at all times other than when she is driving.  She has a device that plugs into an electrical outlet.  It tells her if the battery needs to be recharged.  Sometimes it has to charge for up to four hours, but usually it takes an hour or an hour and a half.  When pain flares, she can increase the strength of the current from the stimulator.  Again, she does not see it as the answer.  It simply “takes the edge off”.

Mr. Justice Rice assessed the Plaintiff’s non-pecuniary damages at $150,000.  In arriving at this figure the Court provided the following reasons:

[52]         In this case, counsel on both sides agree that this was a soft-tissue injury to the neck resulting in continuing neck pain, and continuing generalized moderate headaches with severe migraine headaches, occurring two or three times per week.  The pain during such migraine headaches is excruciating, and her pain and suffering as a whole have affected very negatively almost every aspect of her life.  According to doctors’ recommendations, she has taken medications that only partially help, and at one point led her to addiction to narcotics.  She has undergone surgeries to implant a neurostimulator which has only been moderately successful at best as a means of alleviating the pain.  The consensus of the medical experts has been that the plaintiff has reached the point of maximum medical improvement, and that the headaches and pain will continue indefinitely.

[53]         At the same time, observing her demeanour as she gave evidence, as well as seeing the videotape evidence shown in court, and considering her inability to answer many questions on the basis that she could not remember, I am afraid there is room for mild caution in accepting her testimony unreservedly.  Her frequent inability to recall answers to questions leads me to doubt the reliability of her memory when giving testimony.  By this, I do not mean to resile from the impression that she was generally honest and truthful in explaining the excruciating pain she had suffered.  It is only in respect of a few details, particularly her work capacity and motivation, that her evidence was not completely satisfactory…

[56]         The purpose of non-pecuniary damage awards is to compensate the plaintiff for “pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at para. 134. While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as a guide to assist the court in arriving at an award that is just and fair to both parties: Kuskis v. Tin, 2008 BCSC 862 at para. 136.

[57]         Taking all of the foregoing into account, my view is that the appropriate award for non-pecuniary loss is $150,000.  In this amount I take account of all aspects of general pain and suffering, including a reasonable portion attributable to the effect of diminished capacity in her homemaking role.

Cross examination is one of the more powerful tools at a lawyers disposal.  It allows a lawyer to use leading questions to suggest the answer to the opposing witness.   Knowing what admissions will help or hurt the case, a lawyer can tailor a series of leading questions designed to advance their clients interests.  So what can Stephen Colbert teach a lawyer about cross-examination?  The answer is a lot.

Many lawyers fail to use leading questions when cross examining.  In failing to use this advantage lawyers let witnesses control the flow of information and potentially allow for more damaging answers to come out.  Controlling a witness with leading questions can minimize this risk.

Few people use leading questions better than Stephen Colbert.  When interviewing his guests he often gets them to admit to ridiculous facts.  These ‘admissions’ are obtained through leading questions.  The guests often agree even when the substance of the admission is outrageous and not accurate.  You can click here to access Stephen’s Interviews and see how leading questions can lead to helpful (or in Stephen’s case, amusing) answers.