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.

Posts Tagged ‘Madam Justice Arnold-Bailey’

Court Rejects Defence Doctor As Not A “Reliable and Credible Witness”

September 7th, 2017

A finding that a witness lacks credibility is damaging.  This is particularity so when it comes to an expert witness for hire.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, making such a finding with respect to a a doctor hired by Defendants in a personal injury claim.

In today’s case (Palangio v. Tso) the Plaintiff was injured in two collisions and sued for damages.  The Defendants admitted fault but disputed the plaintiff’s injuries.  In the course of the lawsuit the Defendants had the Plaintiff assessed by an orthopaedic surgeon who provided an opinion minimizing the plaintiff’s injuries.  In finding that this expert witness lacked reliability and credibility Madam Justice E.A. Arnold-Bailey provided the following critical comments

[222]     I did not find Dr. Sovio to be a reliable and credible witness in this case. With regard to reliability I find that Dr. Sovio was quick to assume that the Plaintiff was trying to conceal facts that could be material to his examination, for example, in relation to the subsequent accident, whereas had he read the letter of instruction he was sent prior to his examination of the Plaintiff he would have appreciated there was nothing secret about the Subsequent Accident and that the Plaintiff had disclosed it to other medical experts. Furthermore, I note that certain turns of phrase Dr. Sovio used in his report created a negative or false impression of the Plaintiff, like “he seems to be convinced he needs these [the lidocaine injections administered by Dr. Caillier] on a regular basis or he gets more discomfort.” This statement by Dr. Sovio creates the impression that the Plaintiff determines that he needs these injections, completely overlooking Dr. Caillier’s involvement as the pain treatment specialist who administers them. His choice of language is designed to imply that the Plaintiff is malingering or exaggerating his pain in terms of continuing to need the injections. This is contrary to the impartiality the Court expects from an expert witness.

[223]     I also note that Dr. Sovio is not qualified to provide opinion evidence on chronic pain and pain management. He admitted that he has no training with regard to the treatment of headaches, and that he has had no clinical training regarding the treatment of pain.

[224]     In addition, Dr. Sovio was quick to assume that the First and Second Accidents were very minor accidents involving relatively minor forces. Initially he was evasive about his sources, and then when referred to a portion of the record that did not necessarily support such a conclusion, he resorted to his overall impression gleaned from the records. It is also to be noted that Dr. Sovio had no criteria as to what informed his opinion that an accident was minor, relatively minor, or moderate. I find his assessment of the nature of the accidents and the forces involved to be purely subjective and outside his area of expertise.

[225]     Dr. Sovio neglected to refer to the pain he had noted the Plaintiff to have at his C2-3 vertebrae in the “Impressions and Discussion” section of the report, referring only the Plaintiff experiencing mild discomfort on palpation of the paravertebral muscles. I find that he was inaccurate in summarizing his findings, or he was careless. I do not accept his evidence as he tried to explain this oversight away. Either way, the reliability of his report and his testimony was further undermined.

[226]     Where the opinions of Dr. Sovio as to the causes, extent, or treatment of the Plaintiff’s injuries arising from the First and Second Accidents conflicts with the opinions of Dr. Caillier, Dr. MacInnes, and/or Dr. Sidhu, I reject Dr. Sovio’s evidence without hesitation. Even Dr. Sovio acknowledged that an orthopedic examination may not reveal findings in relation to individuals experiencing legitimate pain and chronic pain, and in my view the Plaintiff is precisely such an individual.


$60,000 Non-Pecuniary Assessment For Chronic Soft Tissue Injury With Associated Headaches

November 12th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $60,000 for chronic soft tissue injuries with associated headaches.

In today’s case (Hinder v. Yellow Cab Company Ltd) the Plaintiff was involved in an intersection collision.  The Defendant denied liability but was found fully at fault at trail.  The Plaintiff suffered a variety of soft tissue injuries, some of which resolved.  She continued to have neck symptoms with associated headaches at the time of trial (some five years later) which were expected to linger into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Arnold-Bailey provided the following reasons:

[140]     The Plaintiff is a young woman, age 29 at the time of the accident. While her soft tissue injuries did not appear to be severe and some resolved, she has been left with neck pain and headaches that regularly progress to become very painful and disabling, forcing her to stop whatever she is doing. The medical evidence is that even with significant medical intervention, the neck pain and cervicogenic headaches are likely to continue into the foreseeable future. Debilitating headaches occur about every two weeks. The Plaintiff is not a complainer. She is stoic, a hard worker and she carries on despite the pain. Her home life and recreational activities have been impaired to a significantly lesser degree than likely would have been the case for a less strong and stalwart person. That does not mean, however, that she does not suffer while incapacitated by the neck pain and headaches; and she clearly misses pursuing her sports activities, particularly downhill mountain-biking, with her pre-accident intensity. She has maintained her family and social relationships because of her positive attitude and how well she generally manages her chores and commitments at home and at work in the face of her neck pain and headaches…

[149]     For these reasons, I find that an award of $60,000 in non-pecuniary damages is appropriate in the present case.


$130,000 Non-Pecuniary Assessment For Chronic Pain With Related Heart Palpitations

January 31st, 2014

It what is a fairly unusual symptom following motor vehicle related injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with associated heart palpitations.  In this week’s case (Morena v. Dhillon) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a variety of injuries which remained symptomatic at the time of trial and were expected to linger into the future, the most unusual of which were heart palpitations.  In assessing non-pecuniary damages at $130,000 Madam Justice Arnold-Bailey provided the following reasons:

[117]     The evidence establishes that she was injured in the accident and as a result developed of the following injuries and conditions as listed by to Dr. Koo:

1.         Soft tissue injuries to the neck, shoulders, arms, lower back and legs with chronic residual sequelae of:

a)         Chronic whiplash injury with mechanical neck pain, myofascial origin, involving the right scalenes, trapezius, supraspinatus, infraspinatus and rhomboids, and left trapezius, levator scapula, rhomboids, supraspinatus, and infraspinatus muscles.

b)         Mechanical low back pain.

2.         Chronic sleep disruption.

3.         Posttraumatic stress disorder.

4.         Severe depression.

5.         Heart palpitations.

[130]     In the present case, prior to the accident, the plaintiff was a vital, energetic 43-year-old wife and mother of two. The extent of her injuries and the ensuing conditions is clearly set out above. She is likely to continue to suffer from pain, depression, PTSD, sleep disruption and potentially heart palpitations in to the future. Her depression is severe and seems to be entrenched. Her pain is severe at times and she requires constant pain medication. Her emotional suffering is great due to her great sadness and regret that she is not able to make the contributions to her family life that she did prior to the accident. Her relationships with family and friends have been negatively affected although her family remains intact. The best evidence is that she is fully disabled from work except for the one hour a day as a lunch supervisor she currently performs during the school year. She remains partially disabled from housework and other physical activities. Her enjoyment of all aspects of her life is significantly reduced. She is prevented by the injuries and their aftermath from living what otherwise was likely to have been a very happy, productive and fulfilling life. She has lost much.

[131]     Considering the range of awards in the authorities provided on behalf of the plaintiff, I find the decisions of Marois and Morlan to be of the most assistance. I award non-pecuniary damages in this case in the amount of $130,000.


Full Rule 15 Costs Apply Where”Significant Preparation For Trial” Undertaken – TAF is Recoverable Disbrursement

July 29th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry addressing two important topics; the assessment of costs for fast track actions when they settle before trial and the recoverability of Trust Administration Fees as a disbursement.

In last week’s case (Christen v. McKenzie) the Plaintiff settled his ICBC claim after litigation was well underway for specified damages plus “costs payable“.  The parties couldn’t agree on these with the Plaintiff seeking full Rule 15 costs and ICBC arguing that a lesser amount should be paid because “a number of pre-trial steps involving a substantial amount of work were still required to be performed as the case settled seven -and-a-half months prior to the commencement of trial“.  Madam Justice Arnold-Bailey awarded the full cap noting that while the trial was a ways off significant trial preparation steps were undertaken and this was sufficient to trigger the Rule 15 cap. The Court provided the following reasons:

[35]         To my mind significant preparation for trial ought to be sufficient to entitle the successful party to costs for pre-trial preparation to the full amount of the cap, presently $6,500 pursuant to Rule 15-1(15). Pre-trial preparation may take various forms given the demands of the particular action. Whether the parties engage in extensive negotiations or mediation and thus achieve a settlement months or days before trial, the preparation by counsel may easily approach that required to actually conduct the trial. The focus ought to be on the amount of useful preparatory work done and not where in the pre-trial timeline the resolution was reached. Indeed, the focus of Rule 15-1 and the Civil Rules generally is to encourage early and fulsome preparation to resolve cases earlier as opposed to later if possible; and also to limit the scope of the proposed trial to what is truly at issue, thus reducing the time and costs associated with resolving the dispute.

[36]         In the present case it is clear that the matter was substantially prepared to the level necessary to achieve a significant settlement prior to trial. While there may be fast track cases where a review of the costs amount claimed for preparation is warranted, this is not one. However one dissects and analyzes what was done or not done to prepare this case for trial, a considerable amount of preparation was performed by plaintiff’s counsel to achieve the sizable settlement. Extensive and protracted negotiations, such as occurred here, ought not to be regarded as requiring significantly less preparation than preparing a case for mediation or trial. Indeed, such negotiations are to be encouraged as the most cost‑effective way of dealing with cases that would otherwise proceed to trial. The efficacy of conducting a fast track action ought not to be undermined by a costs analysis that bogs down in the picayune.

The Court also noted that a Trust Administration fee is a fair disbursement a successful litigant can claim. Madam Justice Arnold-Bailey provided the following comments addressing this:

37]         I note that the plaintiff’s claim for the trust administration fee of $10 plus $1.20 in taxes is not now disputed by the defendant McKenzie and the third party. The following authorities support it being claimed:Parrotta v. Bodnar, 2006 BCSC 787 at para. 25; Polubinski v. Twardowski, 2007 BCSC 843; and McCreight v. Currie, 2008 BCSC 1751. Therefore the plaintiff’s claim for $11.20 in relation to the trust administration fee (including tax) is successful.


Formal Settlement Offers, Costs, and the Flexibility of the New Rules of Court

April 8th, 2011

Interesting reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, discussing the ‘flexibility‘ that the New Rules of Court give Judges in making costs awards following trials where formal settlement offers were made.

In today’s case (Cairns v. Gill) the Plaintiff brought an ‘exaggerated’ personal injury claim to trial following a 2005 motor vehicle collision.  ICBC made an early formal settlement offer in 2006.   ICBC’s offer was modest at just over $1,200 plus costs.   The Plaintiff rejected the offer and proceeded to trial.   The trial did not go well and the Jury largely rejected the Plaintiff’s claim awarding just over $850 in total damages.

Having beaten their formal offer ICBC applied for an order that the Plaintiff pay their post offer Bill of Costs which was expected to exceed $16,000.  Despited the ‘exaggerated’ nature of the claim Madam Justice Arnold-Bailey found that such a result was unjust.  The Court stripped the Plaintiff of her post offer costs and disbursements however did not award ICBC their costs.  In reaching this result the Court provided the following reasons demonstrating the flexible (but perhaps somewhat unpredictable) nature of the current Civil Rules:

[57] The defendants seek costs and disbursements following the date of the offer to settle, despite the plaintiff obtaining judgment.  This is available pursuant to Rule 9-1(5)(d)…

[59] To make such an order would have a very negative effect on the plaintiff, and have the broader effect of further discouraging those with legitimate claims from bringing their actions in this Court when the defendant, funded by an insurer, has deeper pockets with which to bear the risk of a plaintiff achieving only a minor or, indeed, a pyrrhic victory.

[60] It is clear from the rules and the jurisprudence that costs consequences are to guide counsel in litigation decisions.  The object of the Rules is, “to secure the just, speedy and inexpensive determination of every proceeding on its merits.”  This object is to be conducted, as far as is practicable, with regard to proportionality.  While this object is frustrated to some extent by a claim worth $851 proceeding to its conclusion at a Supreme Court jury trial where it was more appropriate for determination in Provincial Court, the object and proportionality principle do not appear to accord with the potential cost of litigation in this case.  The bill of costs of the defendants is expected to exceed $16,000.

[61] I note that the Court of Appeal in Giles recognized when dealing with the issue of double costs that “all litigation comes with a degree of risk,” and that, “when faced with settlement offers, plaintiffs must carefully consider their positions.”  However, the court also indicated that plaintiffs, “should not to be cowed into accepting an unreasonable offer out of fear of being penalized with double costs if they are unable to ‘beat’ that offer.”  These considerations also appear relevant in these circumstances.

[62] In this case, pursuing a valid, although exaggerated, personal injury claim to trial, where the offer to settle did not provide a genuine incentive to settle in the circumstances, may, in the face of a defence funded by ICBC, cost the plaintiff almost twenty times what was awarded at trial.  It seems consistent with the object of the Rules generally, and of Rules 9-1 and 14-1(10), to have regard to the need to emphasize litigation decisions that direct cases to the appropriate forum without disproportionately penalizing a party that had some success, however limited.

[63] To this end, as considered in relation to the first issue, Rule 14-1(10) permits the Court to limit a plaintiff to the recovery of disbursements when the amount of the judgment is within the jurisdiction of the Provincial Court, which I declined to do in this case.  Then, as considered in relation to the second issue, Rule 9-1(5)(a) permits the Court to deprive the plaintiff of any or all of their disbursements after the date of the offer, which I found to be appropriate.  Then, taking the matter even further, Rule 9-1(5)(d) permits the Court to consider requiring the plaintiff to pay the defendants’ costs in respect of some or all of the steps taken after the date of the offer to settle.

[64] This progression demonstrates the flexibility within the overall framework of the rules to craft an order for costs that is appropriate to the circumstances of each case.

[65] In the present case, the plaintiff, although the “successful” party at trial, agreed to forego her costs after the date of service of the offer to settle and is, by virtue of my decision on the second issue, without disbursements from the date of service of the offer to settle, which occurred very early in the proceedings.  To require her to pay all or some of the defendants’ costs after the date of service of the offer to settle, which at the time was an unreasonably low offer, would be excessive and unjust.  It would not be in keeping with the nature of the offer, the relative financial circumstances of the parties, the principle of proportionality, and the need to avoid decisions that inappropriately discourage plaintiffs from pursuing valid claims.

This case is worth reviewing in full for the Court’s length analysis of many authorities to date addressing costs discretion under the new Rules of Court and further addressing important issues such as sufficient reason to sue in Supreme Court, and the relevance of suing an insured defendant.


Keep it to Yourself! Solicitor-Client Privilege and Unintended Waiver

March 2nd, 2011

As previously discussed, the law in Canada permits people to seek confidential legal advice.  Confidential communications between a lawyer and client are a “fundamental civil and legal right“.  This right permits individuals to not only get the advice they need but also to claim ‘privilege‘ over these discussions and to not disclose them in the course of a lawsuit.

This privilege can be waived, however, if the person receiving the advice chooses to discuss the nature of the privileged communications.  This was demonstrated in interesting reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Biehl v. Strang) the Plaintiff apparently advanced the Defendant Mr. Strang $1.6 million.  The lawsuit involved allegations of unjust enrichment and whether there was an enforceable contract as between the parties.  The Plaintiff sued two individual and two corporate defendants.

In the course of the lawsuit one lawyer prepared a statement of defence on behalf of Mr. Strang and the corporate defendants.  Eventually a new lawyer was brought on to represent the corporate defendants.  Mr. Strang, by the time he attended examination for discovery, was self represented.

At his discovery Mr. Strang was asked if he agreed with the contents of the Statement of Defence.   He disagreed with some of the contents.  He was then asked whether he was “giving instrucitons (to his then lawyer) about the drafting of the statement of defence“.   He did not object to this question and replied that he did not give instructions as to the contents of the defence.

The Plaintiff’s lawyer then brought a motion for access to the former lawyer’s records arguing that the Defendant’s lack of objection in discussing this topic constituted a waiver of privilege.   Madam Justice Arnold-Bailey agreed and ordered limited production of otherwise privileged documents.   The court reviewed the law of solicitor-client privilege and waiver at length at paragraphs 31-68 of the reasons for judgement.  In concluding that privilege had been waived the Court provided the following reasons:

[69]    To summarize, in the present case Mr. Strang and the corporate defendants jointly retained Mr. Johnson to represent them.  In the course of doing so, Mr. Johnson prepared and filed a joint statement of defence.  Mr. Strang, by his answers to questions at examination for discovery, denied that he had provided instructions to Mr. Johnson as to the statement of defence and impliedly waived solicitor-client privilege in relation to instructions provided to Mr. Johnson regarding the preparation of the statement of defence.  I have found that Mr. Strang waived his own privilege but not that of the corporate defendants.  However, the corporate defendants will waive privilege as to the preparation of the statement of defence if they call Mr. Johnson.  They seek to do so for the limited purpose of determining whether Mr. Strang approved the statement of defence.

[70]    The position of the plaintiff is that he is entitled to all the material in the possession of Mr. Johnson and his law firm that is relevant and material to the preparation and content of the statement of defence.

[71]    The position taken by the corporate defendants is too narrow; the position taken by the plaintiff is too broad.  The somewhat unusual facts in this case dictate a very cautious and considered approach.  The record is clear that as of the June 2010 discovery of Mr. Strang, he and the corporate defendants no longer jointly retained Mr. Johnson, the lawyer with whom they had privileged communications.  This speaks to a waiver of privilege by Mr. Strang that is very limited in scope.  Mr. Strang ought not to be considered to have waived solicitor-client privilege over anything more than the matters he spoke directly about.

For a more in depth look at this topic you can review the Canadian Bar Associations recently released paper on Solicitor Client Privilege in Canada.


Slip and Fall Accidents in BC – What Does it Take For a Successful Lawsuit?

February 25th, 2010

When you slip and fall and get injured on someone else’s property are you entitled to compensation?  The answer is not necessarily.

Injury in a slip and fall accident is only half of the equation.   The other half is fault.  The ‘occupier‘ of the property (or another defendant who owes you a duty of care) needs to be at fault for the slip and fall otherwise no successful claim for compensation can be brought.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.

In today’s case (Schray v. Jim Pattison Industries Ltd.) the Plaintiff fell (apparently on water) at a Save on Foods Grocery Store which was owned and operated by the Defendant.  The Plaintiff sued for her injuries alleging that the Defendant was at fault.  The Defendant brought a motion under Rule 18-A of the BC Supreme Court Rules to dismiss the case.  Madam Justice Arnold-Bailey denied the Defendant’s motion finding that the case was not suitable for summary dismissal.  Before reaching this conclusion, however, the Court summarized some of the legal principles behind a successful slip and fall lawsuit.   I reproduce these here for your convenience:

[21]        I agree that the prior summary trial judge set out the correct law in the previous application at paras. 5-10, as follows:

[5]        The duties of an occupier are set out in s. 3 of the Occupier’s Liability Act:

3(1)      An occupier of premises owes a duty to take that care that in all the circumstances of the case is reasonable to see that a person, and the person’s property, on the premises, and property on the premises of a person, whether or not that person personally enters on the premises, will be reasonably safe in using the premises.

(2)        The duty of care referred to in subsection (1) applies in relation to the

(a)      condition of the premises,

(b)      activities on the premises, or

(c)      conduct of third parties on the premises.

[6]        The Act does not create a presumption of negligence against an occupier whenever a person is injured on the premises.  To establish liability, a plaintiff must point to “some act (or some failure to act) on the part of the occupier which caused the [plaintiff’s] injury”: Bauman v. Stein (1991), 78 D.L.R. (4th) 118 at 127 (B.C.C.A.).

[7]        A similar test applies under the common law.

[8]        An occupier’s duty of care does not require the occupier to remove every possibility of danger.  The test is one of reasonableness, not perfection.  Thus, an occupier may avoid liability if it establishes that it had in place a reasonable system of inspection:  Carlson v. Canada Safeway Ltd. (1983), 47 B.C.L.R. 252 (C.A.).

[9]        The plaintiff also bears the burden of proving that the hazard in question caused the injury: Keraiff v. Grunerud (1990), 43 B.C.L.R. (2d) 228, 67 D.L.R. (4th) 475 (C.A.).

[10]      An occupier’s duty under the Act in relation to slips and falls in grocery stores was described as follows by Trainor J. in Rees v. B.C. Place (25 November 1986), Vancouver C850843 (B.C.S.C.) (quoted with approval by Hutcheon J.A. in Coulson v. Canada Safeway Ltd. (1988), 32 B.C.L.R. (2d) 212 at 214, [1989] 2 W.W.R. 264 (C.A.)):

The proceedings are brought under the Occupier’s Liability Act and that Act provides that an occupier has a duty to take that care that is reasonable in all the circumstances of the case to see that a person, in using the premises, will be reasonably safe.

The first requirement to satisfy that obligation is to take the kind of steps that were taken by the Defendants here to put into place a system to safeguard against dangerous substances being allowed to remain on the surface of the concourse. And then secondly to be sure that there was compliance by the people who were carrying out that responsibility with the system in place.

The bottom line is that the issue of fault is key.  When considering whether to sue for a slip and fall injury thought should be put to the issue of what the defendant did wrong to cause the incident or should have done to prevent it.

In my continued efforts to cross-reference the current BC Rules of Court with the soon to be in force New BC Supreme Court Civil Rules I will point out that Rule 18-A is kept intact under the new Rules and is reproduced almost identically at Rule 9-7 “Summary Trial“.


BCSC Discusses Non-Pecuniary Damages for Ruptured Breast Impant

January 12th, 2010

Reasons for judgement were released today by the BC Supreme Court discussing the value of non-pecuniary damages for a traumatically ruptured breast implant.

In today’s case (Gregory v. Penner) the Plaintiff was involved in a 2006 rear end car crash in Port Coquitlam, BC.  She suffered a variety of soft tissue injuries in this crash which largely resolved and had non-pecuniary damages valued at $30,000 for these.

The Plaintiff also suffered a more unique injury, a ruptured breast implant as a result of the forces of the crash.  The Plaintiff’s plastic surgeon, Dr. Ross Horton, gave evidence that the Plaintiff “had a blow to the left chest secondary to the motor vehicle accident which has resulted in force significant enough to rupture the saline implant and to cause some fat necrosis to the left breast.  Although the fat necrosis has improved, she has been left with a ruptured implant.  This will leave her with permanent disability with breast asymmetry.  At some point in time she should have the ruptured implant removed and replaced with a new intact implant.”

Madam Justice E.A. Arnold-Bailey had positive things to say about Dr. Horton as a witness and accepted “all of his testimony without hesitation“.

The Court went on to assess the Plaintiff’s non-pecuniary damages for the ruptured implant at $65,000.  In reaching this valuation the Court engaged in the following analysis:

[148] In the present case I accept the testimony of the plaintiff that prior to the accident she had symmetrical breasts after breast augmentation surgery.  I accept that she noticed that she had a substantially smaller left breast about three weeks after the accident, and that since the accident she had experiencing pain and burning sensations in the area of her left breast.  I further accept her evidence that at the same time she found the lump in her left breast.  Several weeks later, Dr. Horton diagnosed the lump to be a lump of necrotic fat due to trauma in the area of the ruptured left breast implant.  When I combine their evidence and consider that the plaintiff as the driver of a motor vehicle was wearing the usual shoulder/lap seatbelt across the area of her left upper body including her left breast, I find without hesitation that the plaintiff has established that the accident was at least a partial cause of rupture of the left breast implant and the associated complications.  Thus, the defendant is liable for the injuries sustained by the plaintiff to the area of her left breast, including the rupture of the implant…

[153] In relation to her ruptured left breast implant, I find that the plaintiff has experienced considerable pain, discomfort, disfigurement, and mental stress and anxiety that continue to the present time…

[161] In the present case the left implant will be replaced.  It is not known if the right implant will also have to be replaced to achieve breasts of a similar size.  The plaintiff has endured considerable pain and suffering, the painful and difficult injections of the lump of necrotic fat by Dr. Horton.  She has also had to endure the ongoing discomfort and emotional and psychological upset and distress caused by the ruptured implant remaining in her chest and the very significant disparity in the size of her breasts for a period of three years and three months.  In all the circumstances I find that a fit and proper award in non-pecuniary damages for this injury is $65,000.


More on ICBC Injury Claims and Pre Trial Discovery – XFD's and Requests for Particulars

November 3rd, 2009

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry dealing with 2 types of pre-trial discovery procedures utilized in the Supreme Court, the scope of examination for discovery questions and requests for particulars.

In today’s case (Gulamani v. Chandra) the Plaintiff alleged injury from 2 motor vehicle collisions some 10 years apart.  The Defendant put together a rather ‘boilerplate’ statement of defence which alleged, amongst other things that the Plaintiff was injured in previous and/or subsequent incidents, that the Plaintiff failed to follow medical advice, that the Plaintiff failed to take appropriate medications and that the plaintiff  did not return to work when she reasonably could have.

The Plaintiff’s lawyer brought an application that the Defence lawyer provide better particulars of these allegations (these types of boilerplate allegations are very typical in Statements of Defence filed in BC Personal Injury Actions).

In granting the Plaintiff’s request for further particulars Madam Justice Arnold-Bailey summarized and applied the law as follows:

[27] The court has the discretion, under Rule 19(16), to order a party to deliver better and further particulars of a matter stated in a pleading, provided that the party seeking that order has demanded them in writing from the other party, as required by Rule 19(17).

[28] It is clear from the case law that the decision to order particulars is extremely discretionary and heavily fact dependent.

[29] Considering the cases provided by counsel on this issue, my view is that the request for particulars is very similar to the previously granted request for further particulars made by counsel for the plaintiff of the Chandra defendants.  Here, as in that motion, what has been provided is so broadly worded and generic that it tells the plaintiff virtually nothing as to the true nature of the case she has to meet with regards to her alleged congenital defects or diseases prior to or post-accident, or regarding aspects of her alleged failure to mitigate.  Such broadly worded statements are particularly problematic in the present case because of the plaintiff’s extensive history of medical treatment over the past 12 years, since the injuries allegedly sustained in the first accident are said to overlap with the injuries sustained in the second accident with the defendant.

[30] I do not find the decisions in Fireside or Hoy provided by counsel for the defendant to be of assistance in this case.  While they are both examples of cases in which particulars were not ordered, they are both easily distinguishable from the case at bar.  Hoy deals with specifics on standard of care in a class action matter, where significant particulars had already been provided.  Fireside was a case where more than a generic particular had already been provided to the plaintiff.  In the case at bar there have been no particulars provided at all with regard to the broad claims contained in the statement of defence.

[31] The Court of Appeal clearly stated the function of particulars in Cansulex Ltd. v. Perry, [1982] B.C.J. No. 369 (C.A.) [Cansulex], where Lambert J.A., for the court, described their use at para. 15:

(1)        to inform the other side of the nature of the case they have to meet as distinguished from the mode in which that case is to be proved;

(2)        to prevent the other side from being taken by surprise at the trial;

(3)        to enable the other side to know what evidence they ought to be prepared with and to prepare for trial;

(4)        to limit the generality of the pleadings;

(5)        to limit and decide the issues to be tried, and as to which discovery is required; and

(6)        to tie the hands of the party so that he cannot without leave go into any matters not to be included.

[32] I now turn to the specific point set out in para. 15 of Cansulex that particulars are designed “to inform the other side of the nature of the case they have to meet”.  In my view, the statements made in the statement of defence are not sufficient to enable the plaintiff to know the case she must meet.

[33] Considering further the points contained in para. 15 of Cansulex, in this case I find that if further and better particulars are not provided by the defendant as to how to the plaintiff failed to mitigate her losses generally as claimed and with regards to her alleged failing to take reasonable steps to return to work, failing to follow medical advice and failing to follow exercise advice, then if there is any substance to these claims, it is likely she will be taken by surprise at trial.  The same may be said with regards to any other incidents or congenital defects or diseases that the defendant alleges caused the plaintiff’s injuries.

[34] I turn to additional points set out at para. 15 of Cansulex, requiring that the particulars must “enable the other side to know what evidence they ought to be prepared with and to prepare for trial”.  Based on what has been provided to date to the plaintiff, I do not see how proper trial preparation could be done.

[35] With regards to the further points from para. 15 of Cansulex regarding the purpose of particulars, “to limit and generality of pleadings” and “to limit and decide the issues to be tried”, once apprised of her alleged failure to mitigate the plaintiff will be able to take steps to collect the relevant evidence with regard to the specific failures or conduct alleged.  As indicated, the alleged overlap between the plaintiff’s injuries from the first accident in June 1997 to the alleged injuries from the second accident in July 2007, add considerable additional factual complexity.

[36] Regarding the final point in Cansulex at para. 15, that particulars serve to “tie the hands of the party so he cannot, without leave, go into any matters not included”, I find that there is considerable benefit to all parties in these actions to be tried together in the upcoming 30 day trial to properly identify and limit such claims.

[37] When considering an application for the delivery of further and better particulars, Bouck J. made a comment in Cominco Ltd. v. Westinghouse Can. Ltd. (1978), 6 B.C.L.R. 25 at 27 (S.C.). at paras. 7-8, which I consider to be relevant to the present application, namely:

Occasionally parties can get caught up in the fascination of the interlocutory process and lose sight of the fact that some day the matter must go to trial even though a “perfect” framework does not exist for its presentation.  Sometimes as well one side or the other is merely replying to the overzealousness of his opponent and motions or their opposition are meant to let one another know it will be a long hard fight.

I mean no criticism of counsel by these remarks.  They are honestly trying to pursue every recourse for the benefit of their respective clients.  That is their right and their duty.

[38] For these reasons the plaintiff’s application for further particulars is granted.

The second pre-trial procedure dealt with in today’s case was the scope of examination for discovery questions.  On examination the Plaintiff’s lawyer asked the Defendant to provide his cell phone records (to help prove or disprove that he was on the phone at the moment of impact), to provide the names of “liability and damage witnesses and contact information”.  In holding that these are proper discovery questions Madam Justice Arnold Bailey applied and summarize the law as follows:

[39] With respect to question (a) and the demand for cellular phone records, Rule 27(20) states that “a person to be examined for discovery… shall produce for inspection on the examination all documents in his or her possession or control not privileged, relating to the matters in question in the action”.

[40] Liability is at issue and the potential for the cellular phone records to indicate whether the defendant was using his phone at the time of the accident does exist.  Although not referred to any authorities by counsel, I note that there are several cases where cellular phone records have been referred to as to whether a person was using the cellular phone at the time of the accident.  One such case is Abay v. Keung, 2006 BCSC 1236, in which the plaintiff testified that the defendant had been using a cellular phone at the time of the accident, and the defendant denied doing so.  The defendant there had also refused to divulge his cellular phone records on examination for discovery.  There is no record of a demand being made for those records.  In that case, Cohen J. found, at para. 73, “although I find that the defendant had a cell phone in his vehicle, I cannot conclude that the defendant was talking on the cell phone at the time of the collision, as there is strongly conflicting evidence on this point”.  Cohen J. did not comment on the lack of records as affecting credibility or believability of the defendant.

[41] Conversely, in Zubko v. Ezaki, 2002 BCSC 1894, the defendant produced her cellular phone records to prove conclusively that she was not speaking on her phone at the time of the accident, as was alleged by the plaintiff.

[42] While I agree with the submission on behalf of the defendant that the phone records will not necessarily show with certainty whether the defendant was talking on the phone at the time of the accident, it seems that those records are within the scope of Rule 27(20) insofar as they relate to the matters in question in the action, namely liability for the motor vehicle accident.  It is entirely possible that the records will prove to have little weight at trial, but that is irrelevant to what is required by Rule 27(20).  Accordingly, I order the defendant to provide the answers to questions 68 – 71 of the examination for discovery, including providing his cell phone records for the day of the accident.

[43] With regard to question (b) and the names and contact information of liability and damage witness names, I agree with the reasoning in Sovani, at para. 3, where Paris J. held “Rule 27(22) means just what it says, namely, that the names and addresses of such persons must be disclosed if requested and the fact that a person’s knowledge relates only to the issue of damages does not safeguard the names from disclosure”.  Accordingly, I order the defendant to answer question 276 and as posed on p. 63 of the examination for discovery.

Lastly, since this is a case dealing with Civil Procedure, it is my practice to check if this case will remain a useful precedent when the new BC Supreme Court Civil Rules come into effect in July, 2010.  The answer is probably yes as the current Rule 19(16)(17) which the court relied on in its order for further particulars remains intact under the new rules and can be found at Rule 3-7(22).

With respect to the order addressing examinations for discovery, this case relied on Rule 27(20) which remains largely intact under the new Supreme Court Rules and can be found at Rule 7-2(16).  While the new rule seems to have some restrictions to it not present in the current rule the same result should arguably apply as the rule for production of relevant documents at the discovery will continue to apply to “a person for whose immediate benefit an action is..defended” as set out in Rule 7-2(6).


More on Medical Records, Document Production and Privilege in ICBC Injury Claims

October 13th, 2009

Useful reasons for judgement were released today by the BC Supreme Court dealing with the records that need to be disclosed to opposing counsel following an Independent Medico-Legal Exam.

In today’s case (Gulamani v. Chandra) the Plaintiff was involved in 2 motor vehicle accidents approximately one decade apart. In the course of the lawsuits she attended various medico-legal appointments at the request of the Defence Lawyers under Rule 30 of the BC Supreme Court Rules.

Following these the Plaintiff’s lawyer brought an application that  these doctors deliver “copies of their examining notes or any other recording generated by or on behalf of the said doctors that record any history given to them by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff including scoring documents prepared by the examiner“.

The Defence lawyers opposed this motion and argued that the sought materials “constitute the doctors’ working papers and underlying materials that are privileged and part of the solicitor’s brief until the doctor testifies in court, at which point the privilege is waived. ”

Madam Justice Arnold-Bailey rejected the defence position and noted that “solicitor’s brief privilege can be trumped when it comes to the bare facts” and that “there is no property in a witness of fact”.  In ordering production of the sought records the Court extensively canvassed the law in this area and summarized its position as follows:

[24]         Stainer and Traynor clearly indicate that any notes, annotations, recordings, or working papers that reveal an examining doctor’s confidential opinion or advice to counsel will, generally, be privileged.  Even things as small as question marks or exclamation marks added to raw test data could fall into this category and would potentially need to be redacted:Traynor, at para. 21.

[25]         However, the cases also illustrate that notes or recordings that capture the factual history given by the plaintiff to an examining doctor, as well as raw test data and results, are outside the scope of solicitor-client privilege and are subject to production.  I agree with the conclusion reached by the learned master in McLeod as one that follows these basic principles and extends them to circumstances outside the scope of a Rule 30 order. General principles are indeed just that – general principles – and not principles that are only to be applied in making a Rule 30 order or only to be applied when such an order is made.  As Master Caldwell opined in McLeod, the timing of the request for disclosure and whether a court order triggered the examination are factors which do not override the application of Rule 1(5) and the court’s role to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  I share this view.

[26]         I do not disagree with the submission by counsel for the Chandra defendants, in line with S. & K. Processors and Vancouver Community College, that an expert’s working papers remain privileged until that expert takes the witness stand.  As I understand the jurisprudence, however, there is a clear distinction between an expert’s working papers, which contain opinions, or which may be prepared for the sole purpose of advising counsel, and the facts underlying those opinions or advice.  In the case at bar, the plaintiff is not asking for the type of documents that were at issue in those cases, and those cases reaffirm that the factual material the plaintiff seeks is indeed subject to production.

[27]         The Sutherland case is perhaps, at first blush, most problematic for the plaintiff, in that it appears to imply that the only factual material requiring disclosure will be that which is not already adequately set out in the written statement accompanying the expert report (in the context of Rule 40A).  As I have indicated above, however, upon further analysis I do not believe the case stands for this point.  The court in Sutherland could not find that giving notice under Rule 40A meant that everything underlying the report was suddenly subject to production before the witness took the stand, because a pre-existing privilege existed over the documents, and was not entirely waived simply by virtue of giving notice under Rule 40A.  The court therefore only ordered production of the raw data from among the requested general “rubric of clinical records” – material that was clearly factual in nature and did not involve opinion or advice.

[28]         On that note, the question that may remain after reviewing many of these cases is whether, prior to notice being given under Rule 40A, there is any privilege over the examining doctors’ materials, specifically over anything factual in nature reported by the client and not involving opinion or advice.

[29]         I am of the view that this is not so in the circumstances of the case at bar.  The passages from Stainer cited above reaffirm that even the solicitors’ brief privilege can be trumped when it comes to the bare facts, since it is well settled that “there can be no property in a witness of fact”.  Further, regardless of the way any of the cases cited in these reasons unfolded, including applications under Rule 30, outside of Rule 30, under Rule 26, pursuant to Rule 40A, and under s. 11 of the Evidence Act, and both before a report has been put into evidence and before a report has even been created, I fail to see any examples where a court has declined to order production of the factual underpinnings of an expert’s report, as reported by the plaintiff and recorded in notes, annotations and test data.

[30]         The facts of the present matter are also such that it is the plaintiff who has applied for the information in question, and it was of course the plaintiff herself who provided that information and raw data to the doctors in question.  Further, as I appreciate the circumstances of the present application, it is the non-party doctors who have the information in their hands, and not counsel for the Chandra defendants, who presumably have not been privy to the underpinnings of the reports.  As such, I fail to see how, in these circumstances, there is any doctor-client privilege or solicitor-client privilege to assert, or any strong argument to be made about non-party rights in the context of Rule 26(11)…

[36] In conclusion on this issue, I therefore order that the defendants and Doctors Hawkins, Hepburn, Weeks, Magrega, and Munro deliver to the solicitor for the plaintiff copies of their examining notes or any other recording generated by or on behalf of said doctors that records any history given to them by the plaintiff on the examination and any notes that record the doctor’s observations or findings on physical examination together with copies of any tests, questionnaires, or other documents completed by or on behalf of the plaintiff, including scoring documents prepared by the examiner, except any documents containing the doctors’ opinions or advice, within 14 days of the pronouncement of this order.

In addition to the above, the Plaintiff’s lawyer also brought a motion for production of records documenting the extent of MSP Billings that one of the Defence Doctor’s had with respect to Thoracic Outlet Syndrome. In partially granting this order Madam Justice Arnold-Bailey held as follows with respect to the relevance of such a request:

[44] I agree with plaintiff’s counsel’s that the expertise of Dr. Munro is an issue, albeit ancillary, to this matter and that the information has been properly sought pursuant to Rule 26(11).  The information sought is relevant because, to use the wording in Peruvian Guano, it may allow the requesting party to damage the case of its adversary.  After all, to properly cross-examine Dr. Munro on his qualifications at trial will require counsel to be prepared with the relevant information to be able to do so, and as I understand it, acquiring the information at that later stage would interrupt the trial given the time it takes to receive it from Health Services.  To be clear, I find that Dr. Munro’s opinion and expertise is important as it relates to the plaintiff’s injury claims, particularly because it conflicts with the opinion of another medical expert.