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 Griffin’

$70,000 Non-Pecuniary Assessment for “Permanent Worsening” of a Chronic Pain Condition

December 28th, 2016

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for the worsening of a pre-existing chronic pain condition.

In the recent case (Deol v. Sheikh) the Plaintiff was involved in a 2012 rear-end collision that the Defendant was found responsible for.  Prior to this the Plaintiff was involved in a 2006 collision which left her with chronic pain symptoms.  The Court found the latter collision permanently worsened these symptoms and assessed non-pecuniary damages at $70,000.  In reaching this assessment Madam Justice Griffin provided the following reasons:

[154]     Here, the Plaintiff suffered from soft tissue injuries and chronic pain as a result of the 2006 Accident; she also suffered from soft tissue injuries and an exacerbation of chronic pain symptoms after the 2012 Accident.

[155]     I find that the analysis in Schnurr is most applicable to Ms. Deol’s position. There is an abundance of evidence establishing that the Plaintiff had developed a chronic pain condition as a result of the 2006 Accident and that six years later it was continuing but relatively stable with the possibility of flare-ups just before the 2012 Accident. We therefore know the original position she would have been in, had the 2012 Accident not occurred.

[156]     It is important to note that the 2012 Accident did not tip the scales from one condition to another. It was not the cumulative effect of the 2012 Accident and the 2006 Accident that caused Ms. Deol to develop a chronic pain condition. Rather, she had this serious condition before the 2012 Accident.

[157]     The language in Ashcroft refers to the negligence of both the settling defendant and the respondent tortfeasor as being “necessary causes” of the injury. Again, the 2012 Accident did not cause the chronic pain condition. That condition pre-existed and was going to continue regardless of the 2012 Accident.

[158]     The evidence in this case makes it possible to consider the position that Ms. Deol was in before the 2012 Accident, and to compare her post-2012 Accident to that position, and to assess damages based on a change in her position.

[159]     I find that Ms. Deol’s injuries sustained in the 2012 Accident are divisible from the injuries sustained in the 2006 Accident.

[160]     I have found that the 2012 Accident caused a permanent worsening of Ms. Deol’s chronic pain condition, increasing her sensitivity to pain. Initially this increased pain was more significant in the approximately two years following the 2012 Accident before she was able to return to work in March 2014. It has since become more manageable but I find she has a greater propensity to suffer symptoms of her chronic pain condition in the future, as compared to the position she would have been in absent the 2012 Accident.

[161]     The Plaintiff is entitled to damages to compensate her for the injuries sustained in the 2012 Accident, to try to put her in the place she would have been in but for the 2012 Accident, but not to put her in a better place than she would have been had the 2012 Accident not occurred…

[211]     I found none of the authorities particularly helpful on the facts, where here, the Plaintiff is young, she suffered a serious loss of enjoyment of life for two years, and will likely suffer some loss of enjoyment of life in the future, incremental to the loss of enjoyment that would otherwise be caused by her chronic pain condition. I find an appropriate award of non-pecuniary damages to be $70,000.


ICBC Doctor Criticized as “Very Unhelpful Medical Witness” By BC Supreme Court

December 28th, 2015

In the latest example of expert witnesses who cross the line into prohibited advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing a physician for such behavior.

In this week’s case (Ferguson v. McLaughlin) the Plaintiff was injured in a 2009 collision caused by the Defendant.  The Defendant’s insurer hired a physician who presented evidence largely discounting the connection of the Plaintiff’s complaints to the collision.  In rejecting this evidence Madam Justice Griffin had the following pointed comments for the physician –

[63]         The defendant called the evidence of Dr. Duncan McPherson, an orthopaedic surgeon, who performed a medical examination of the plaintiff at the request of the defendant.

[64]         Dr. McPherson was a very unhelpful medical witness.

[65]         Dr. McPherson has not practised medicine for years. He stopped his work as a surgeon in 1992 or 1994 and ceased practising medicine in 1997. It is difficult to assume that he is up to date on medical studies regarding soft tissue injuries and pain.

[66]         Dr. McPherson is wholly reliant on the Insurance Corporation of British Columbia (“ICBC”) for his income and has been for years. He was clever, and I mean this not in a complimentary way, when questioned about his reliance on ICBC for his income in the last several years, hinting at the notion that he had other sources of income. He then agreed the other sources of income were simply his investment income.

[67]         Dr. McPherson’s approach to examining patients appeared to be dependent on a verbal test. He asks the patient to explain the patient’s complaint, and if the patient does not mention pain in his answer, he concludes that in his opinion the patient does not have pain and thus does not have a lasting injury. Dr. McPherson stated that when patients describe complaints in the activities they can do, rather than stating they have pain in a body part, that is because they are not sure where the pain “should” be, implying that the patient is not telling the truth if they do say they have pain.

[68]         Dr. McPherson was in my view overly confident that the question he poses to patients is a scientifically valid “truth-o-meter”, foolproof in discovering whether pain exists or not. He seemed completely close-minded to the possibility that some patients might not understand what he means by “complaint” or may not consider “pain” to be a complaint but a condition that they simply deal with on a day-to-day basis.

[69]         Dr. McPherson found it highly relevant that when he asked the plaintiff about his present complaints relating to the accident, the plaintiff did not say he has pain, but said he is limited to certain activities now, such as he cannot do heavy work, or has issues with his back hurting during sexual activities. Dr. McPherson appeared to conclude that because the plaintiff did not say “I have pain in my back” during the interview, he therefore did not have a chronic pain injury in his back.

[70]         I found Dr. McPherson’s logic to be at best simplistic and superficial. At worst it reveals that Dr. McPherson holds such a degree of cynicism regarding patients advancing claims against ICBC that he is not independent and his evidence is unreliable.

[71]         When it was suggested to Dr. McPherson he may not have written down exactly what the patient said he was absolutely confident that he was always a perfect recorder of what patients said to him. This is so despite the brevity of his report. A reasonable, educated person would allow for the possibility of mistakes being made in transcribing a patient’s comments, but Dr. McPherson did not do so, illustrating his close-minded disposition.

[72]         It seems obvious to me that when describing his limitations to Dr. McPherson, the plaintiff was intending to convey to Dr. McPherson that the accident caused these limitations because of the pain he suffers, as he explained in court. The fact that he might not have spelled out to Dr. McPherson in a more explanatory way that ”the accident caused me to have pain in my back which limits me from these activities” is not an admission that proves that his injuries do not cause him pain in his back.

[73]         Also, Dr. McPherson gave significant weight to the fact that the plaintiff exhibits a full range of motion. He seemed unwilling to accept that a person can have a full range of motion but also suffer from pain. Dr. Lepard, the plaintiff’s family doctor until she retired in 2011, said that it is not uncommon for a patient with an injury to have full range of motion but also to have pain. I prefer Dr. Lepard’s evidence on this point, as it is consistent with the plaintiff’s evidence that he has pain on prolonged activity on a recurring basis.

[74]         Dr. Lepard did agree that the plaintiff’s range of motion suggested that his whiplash injury was not as serious as Category 3 and 4, but was more in the Category 2 range, of being in the medium to low end of whiplash soft tissue injuries.

[75]         Dr. McPherson concluded that there was no “objective” evidence of a disability relating to the motor vehicle accident. This is not a helpful opinion in relation to the injuries in this case. Pain may not something that can be measured objectively with a scientific instrument, but it can still be disabling.

[76]         I note that even the defendant concedes on the whole of the evidence that the plaintiff has suffered a soft tissue injury which will cause some future loss of earning capacity.

[77]         I do not find Dr. McPherson’s evidence to be of any value in deciding the issues in this case.


Hospital Found Liable For Brain Injury Following Patient Suicide Attempt

September 22nd, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a hospital liable for a profound and permanent brain injury a patient suffered during a suicide attempt by hanging while in the care of the Defendant.

In today’s case (Paur v. Providence Health Care) the Plaintiff “suffered a brain injury when he attempted suicide by hanging in a bathroom at St. Paul’s Hospital“. He was there certified under the mental health act following having suicidal thoughts.  In finding the hospital was negligent in their care of the Plaintiff and finding them liable for his damages Madam Justice Griffin provided the following reasons:

[6]             I have conclude that SPH was negligent because, in summary:

a)    as part of its patient mix, SPH had a large number of suicidal, intoxicated patients treated in the ER who were certified and held involuntarily, many of them held in the Comox Unit;

b)    SPH knew or ought to have known of the real risk that a suicidal, intoxicated certified patient might attempt suicide by hanging in the hospital;

c)     SPH knew or ought to have known that the bathroom in the Comox Unit was unsafe for such a patient as the bathroom had not been made ligature-proof;

d)    SPH knew or ought to have known that the risk to a patient who attempts hanging is a very grave risk, as serious irreversible brain damage can be done to the patient quickly, within the range of five minutes, and the hanging can be fatal beyond ten minutes; and

e)    SPH had no policies or protocols for nursing staff in place to ensure that such patients were not permitted to be unmonitored in an unsafe locked bathroom for a period of time approaching five minutes or more.

[7]             This is not a case where, in the exercise of clinical judgment as to the degree of suicide risk Mr. Paur presented, medical professionals made a decision to allow Mr. Paur the freedom to be unmonitored for a period of time in an environment in which he might attempt hanging. Because he was intoxicated, Mr. Paur’s level of suicide risk had yet to be assessed beyond the fact that he was a suicide risk.

[8]             Nor is it a case where, after weighing the known risks, costs and benefits, SPH made a decision as to how to deal with the risk of suicidal patients attempting suicide by hanging in the bathroom in the Comox Unit, either by designing the bathroom a certain way or by instituting nursing policies to deal with the risk. Rather, this is a case where SPH ought to have known there was a significant risk to suicidal patients posed by the bathroom in the Comox Unit and by the lack of protective policies concerning bathroom use, but did nothing about this risk.

[9]             Mr. Paur was left unmonitored in the bathroom for a long enough period to be able to wrap a hospital gown around his neck, open up the ceiling tiles, tie the gown around fixtures in the ceiling, and hang himself to the point of unconsciousness, causing brain damage.

[10]         It would have been relatively simple and not too costly for SPH to design the bathroom facilities safely to prevent the risk of suicide by hanging; or, alternatively, to establish policies to mitigate the risk of a suicidal patient being left alone in the bathroom unmonitored for a sufficiently long period of time as to cause serious harm from hanging.


Corporate Plaintiff Not Allowed To Read In Discovery Evidence of Former Employee

June 29th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing limits on the use of discovery evidence at trial.

In today’s case (No Limits Sportswear Inc v. 0912139 BC Ltd) the Plaintiff sought to read in evidence at trial of their former employee who was questioned at discovery as a representative of the Plaintiff.  The Plaintiff argued that Rule 12-5(47) allowed such a result.  Madam Justice Griffin disagreed and in preventing the Plaintiff from using the discovery evidence of their former employee the Court noted as follows:

[14]         The interpretation of the Rules suggested by the plaintiffs regarding the use at trial of the examination for discovery of a former employee is contrary to the underlying purposes of the procedure.

[15]         The utility of an examination for discovery would be undermined if self-serving parts of evidence of the former employee given on discovery could be read-in at trial by the party who used to employ the witness. Such a result would seriously inhibit the scope of questioning by the examining party, limiting the fact-finding nature of the discovery and its usefulness as a tool to avoid surprise at trial and to encourage settlement.

[16]         The former employer does not need to use the examination for discovery transcript in order to call helpful evidence from its former employee at trial. The former employer always has a choice of calling him as a witness at trial.

[17]         Contrary to the submissions of the plaintiffs, the fact that subrules 12-5(46), (47) and (48) are separate subrules does not lead to the conclusion that each subrule stands alone and that any party can tender the examination for discovery evidence of a former employee.

[18]         Rule 12-5(46) states that evidence given on examination for discovery may be tendered by “any party adverse in interest”. Rule 12-5(47) does not say who it may be tendered by, but instead, deals with the requirement of giving notice of the intention to tender the evidence if it is from a former employee. Subrule (47) does not say the evidence can be tendered by any party and does not supersede the requirement in R. 12-5(46) that it be tendered by a party adverse in interest.

[19]         Also relevant is the restriction on the use of the evidence as set out in R. 12‑5(46)(b). This subrule provides that the evidence is admissible only “against” the adverse party whose status as a party entitled the examining party to conduct the examination. In other words, the evidence of the former employee, if read-in at trial, is only admissible against his former employer, the plaintiff company. It cannot be read-in by one group of defendants as evidence to be used against the other defendant. The plaintiffs’ submission that the plaintiffs should be entitled to read-in portions of the evidence to be used “at large” in the trial would be contrary to these restrictions.

[20]         The purposes of subrules 12-5(47) and (48) are to deal with the situation where the former employee who was examined for discovery is hostile to his former employer, and gave evidence on discovery which the former employer does not accept and wishes to challenge. Subrule (47) requires that the party tendering the former employee’s evidence, which again by subrule (46) must be a party adverse in interest to the party who formerly employed the witness, must give 14 days’ notice before trial of the intention to tender the evidence. This then gives the party who formerly employed the witness, and any other party, the opportunity to require the witness to be produced for cross-examination at trial pursuant to subrule (48).

[21]         To deal with the possibility that the former employee may have loyalties to none of the parties at trial, subrule (48) allows all parties to cross-examine the witness if his presence is required at trial.

[22]         I find support in this interpretation in the commentary to R. 12-5(47) found in McLachlin & Taylor, British Columbia Practice, vol. 2, 3d ed. (Markham, Ont: LexisNexis, 2006) at 12-51 as follows:

Under SCR 1961, M.R. 370rr, only the examination of a person who was an officer or servant of the corporation at the time of trial could be used as evidence. This was subject to SCR 1961, M.R. 370s which effectively excluded the use of discovery of a former officer or servant who had been dismissed from employment except where such dismissal occurred after service of the appointment for examination for discovery, in which case his examination could be used with leave of the court: Seymour v. Fleetwood Logging Co., [1963] B.C.J. No. 64, 45 W.W.R. 511 (S.C.). The apparent reason for these rules was the prospect of the unfair use against a corporation of the discovery of a person no longer in its employ and possibly hostile to it.

These restrictions on the use of examination for discovery of former director, officer, employee, agent or external auditor of a party was abolished by the enactment of SCR 1976, Rule 40(24) (which became SCR 1990, Rule 40(27)): Robitaille v. Vancouver Hockey Club Ltd. (No. 2), [1979] B.C.J. No. 526, 13 B.C.L.R. 309 (S.C.), affd [1981] B.C.J. No. 555, 30 B.C.L.R. 286 (C.A.). Because a party has no choice in the selection of who is examined on his behalf under Rule 7-2(5), it is arguably unfair to burden him with such a person’s answers: see Rule 7-2(5) and comments thereunder.

Accordingly, SCR 1976, Rule 40(27) (which became SCR 1990, Rule 40(24)) was amended in 1985 to provide that the examination for discovery of a former director, officer or servant may be given at trial only if notice of the intention to do so is delivered to all parties at least 14 days before the trial. Any party may then require that the person examined attend at the trial and, if any part of the examination for discovery is given in evidence, all parties may then cross-examine the former director, officer or servant.

[23]         I conclude that the plaintiffs are not entitled to read-in passages of the examination for discovery of its former employee, Mr. Darren Hawrish.


Road Rage Intimidation Incident Leads to Liability for Subsequent Crash

December 26th, 2014

Reasons for judgement were released earlier this week demonstrating liability after a motorist intimidated a cyclist who subsequently crashed.

In this week’s case (Davies v. Elston) the Plaintiff was an experienced cyclist.  As he a passed parked truck whose mirror extended into the bike lane the Plaintiff’s son who was riding with him commented about the truck.  The truck’s owner heard this, jumped in his vehicle and drove after the cyclists to confront them.  Words were exchanged during which time the truck came close enough that the Plaintiff placed his hand on the passenger side window of the vehicle. As the truck drove away the Plaintiff lost control of his bicycle and fractured his pelvis.

The Defendant argued the Plaintiff was solely at fault for the incident.  Madam Justice Griffin disagreed and found the defendant fully responsible.  In reaching this conclusion the Court provided the following reasons:

[167]     As for whether Mr. Elston’s conduct was negligent, I find that the defendant fell below the standard of care of a reasonable and prudent driver, in driving alongside the two cyclists and yelling at them, while so close to the bike lane that it made it intimidating, threatening and unsafe for the cyclists; and then in addition in pulling away quickly, without warning, with Mr. Davies so close by and with his hand on the truck. 

[168]     It is obvious as a matter of common sense that such driving conduct was without reasonable care for the safety of the cyclists and was negligent.

[169]     No matter how aggravating a cyclist’s behaviour might be, and I find there was nothing aggravating about the Davies’ conduct, a driver of a motor vehicle can never be justified in deliberately using a motor vehicle to confront a cyclist who is riding a bike.  Confrontation creates a serious risk of harm to the cyclist which is way out of proportion to anything the cyclist might have done.  A driver of a motor vehicle is not entitled to impose a penalty of death or serious bodily harm on a cyclist just because the cyclist was rude or broke a traffic rule. 

[170]     It has to be remembered that motor vehicles have four wheels, automatic brakes, seatbelts, and the driver is nicely encased in a heavy steel cage and that a person on a bicycle is not in a situation which is the least bit comparable, even if going the same speed as a vehicle.  A cyclist cannot stop on a dime, is vulnerable to losing balance, and can be seriously injured or killed if he or she makes contact with a motor vehicle or falls at a high speed. 

[171]     Mr. Elston and Jim Davies knew this at the time that Mr. Elston was confronting Jim Davies.  This is what made the situation so unnerving for Jim Davies and this was entirely foreseeable to Mr. Elston who wished to intimidate him.

[172]     I conclude that but for Mr. Elston’s aggressive and negligent conduct, Jim Davies would not have fallen from his bike.  Mr. Elston’s negligence therefore caused the accident and resultant injuries.

 


Privacy A Rare Protection For Personal Injury Plaintiffs

November 18th, 2014

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all.  These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details.  Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement.  In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.

In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues.  This is because the plaintiff works in employment that involves some physical stress on his body”.  ICBC objected to the reqest for privacy.  In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12]         The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13]         I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff.  There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14]         I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice.  There are sound reasons for publishing the names of litigants.  One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so.  This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15]         The application to anonymize the judgment is therefore refused.


Court Criticizes Doctor As Being “An Advocate For ICBC”

October 17th, 2014

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.

In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted.  The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities.  ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms.  In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.  


$20,000 Non-Pecuniary Assessment For Minor Yet Lingering Soft Tissue Injuries

September 26th, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for minor, chronic soft tissue injuries.

In today’s case (Rosso v. Balubal) the Plaintiff was injured in a 2011 sideswipe collision.  Fault was admitted by the Defendant.  The Plaintiff suffered from a variety of health complaints following the crash and attributed these to the collision although the Court found that the majority of the Plaintiff’s ailments were unrelated to the incident.  The Court did find that the Plaintiff suffered soft tissue injuries which disabled him from work for 9 months and further had some modest lingering limitations.  In assessing non-pecuniary damages at $20,000 Madam Justice Griffin provided the following reasons:

[91]         The overall impression I formed of the plaintiff’s evidence, after considering it in the context of the whole of the evidence and particularly the medical evidence, was that he tended to think very negatively and to have an exaggerated view of his physical limitations and symptoms following the accident. 

[92]         I therefore unfortunately find that Mr. Rosso’s perception of his abilities, or rather disabilities, is unreliable. 

[93]         I agree with the defendants that there is no credible or reliable evidence to support a conclusion that the accident caused the broader range of symptoms reported by Mr. Rosso.

[94]         Despite this, I do accept the plaintiff’s evidence that he has continued to experience some neck and back pain since the accident.  There is abundant medical evidence which supports the conclusion that Mr. Rosso suffered some soft tissue injuries as a result of the accident and I so find.  I accept the conclusion of the majority of the medical experts that if the pain has not gone away by now, it is likely he will continue to experience some ongoing pain in the future. ..

[99]         I am persuaded on the totality of the evidence that the motor vehicle accident caused the plaintiff to suffer ongoing symptoms of mild neck and back pain, which are symptoms likely to continue into the future to some extent but which can be managed with regular exercise.  The evidence also supports the conclusion that immediately after the accident for a short period the plaintiff did have some associated minor headaches and anxiety in relation to driving which was caused by the accident. ..

158]     Here I find that the injuries are minor and have had a minor impact on Mr. Rosso’s life, especially in comparison to other circumstances in his life, such as the death of a close friend and his inability to become a commercially successful rock musician.  I conclude that a fair and reasonable assessment of non-pecuniary damages is $20,000. 


Formal Offer on Eve of Trial Not “Too Late” To Trigger Costs Consequences

July 14th, 2014

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing the effects of a formal settlement offer made on the eve of trial.

In last week’s case (J.D. v. Chandra) the Plaintiff was injured in two motor vehicle collisions.  At trial she was awarded just over $500,000 in damages.  On the last business day before trial the Plaintiff made a formal offer to settle for $200,000.  The Plaintiff sought double costs for the trial arguing the offer should have been accepted.  The Defendant argued the offer was made too late in the process to trigger such consequences.  In rejecting this position Madam Justice Griffin provided the following reasons:

[16]         One of the defendants’ arguments is that the offer was delivered too close to the start of trial.  The offer was delivered at the end of the day on Friday, January 31, 2014, and counsel for the defendants submits that he did not see it until the next day, Saturday, February 1, 2014.  The trial was set to and did commence the following Monday, February 3, 2014.

[17]         The shortness of time to consider the offer does give me pause.  However, counsel for the plaintiff has pointed out case authorities where ICBC has taken the position that offers it has delivered to plaintiffs on the eve of trial ought to be considered by the court in depriving the plaintiff of costs.  These arguments have been accepted in some cases, for example, see Bevacqua v. Yaworski, 2013 BCSC 29.

[18]         As noted by Mr. Justice Voith in Brewster v. Li, 2014 BCSC 463, there is currently no requirement in the Rules that an offer be made within a specific time from the start of trial.  The question of what is a reasonable time to consider an offer is “largely driven and governed by context” (para. 26).

[19]         Here, the context was that counsel for the defendants had delivered an offer to settle on January 21, 2014; the parties had attended a Judicial Settlement Conference on January 29, 2014, and the defendants had delivered an additional offer to settle on January 30, 2014.  This context suggests that the defendants were in a position where they were well able to analyze the risks of going to trial and the relative merits of each side’s position.

[20]         There was nothing complicated about the offers to settle which required lengthy analysis.  The parties were just exchanging dollar amounts.  There was no revealing new analysis of the issues or last minute disclosure of material information.

[21]         The plaintiff’s form of offer to settle adopted a form similar to that of the defendants.

[22]         The defendants were represented by experienced counsel for ICBC.  I find that the defendants were in a good position to be able to analyze and respond to the offer within hours, if not minutes.  I find that the defendants had sufficient time to assess the reasonableness of the plaintiff’s offer to settle.

 


Chairlift Negligence Claim Dismissed Due To Waiver

September 12th, 2013

Adding to this site’s archived cases addressing waivers of liability in sporting injury claims, reasons for judgment were released this week by the BC Supreme Court, Kamloops Registry, addressing the effect of a waiver following a ski-lift accident.

In this week’s case (Morgan v. Sun Peaks Resort Corporation) the Plaintiff was “preparing to load onto a chair lift at the ski resort owned by the defendant Sun Peaks Resort Corporation when she fell.  The approaching chair lift was not stopped in time and she was run over by it“.  Prior to this incident the Plaintiff signed a waiver of liability which is commonplace at ski resorts.  She sued for damages alleging negligence and the Defendant applied to have the claim dismissed based on the strenght of the waiver.   Madam Justice Griffin upheld the waiver and dismissed the lawsuit.  In doing so the Court provided the following reasons:

[30]         The Release describes the defendant and its directors, officers, employees, agents, contractors, and representatives as “THE OPERATORS”.  In the release section of the Release, it states that in consideration of the Operators accepting the application for a season pass and permitting the use of their facilities and property, including use of the lifts, the party signing agrees as follows:

1.         TO WAIVE ANY AND ALL CLAIMS that I have or may in the future have against THE OPERATORS AND THE PROVINCE, and its directors, officers, employees, agents, guides, instructors, independent contractors, sub-contractors, representatives, sponsors, successors and assigns (all of whom are hereinafter collectively referred to as “THE RELEASEES” ), and TO RELEASE THE RELEASEES from any and all liability for an loss, damage, expense or injury including death that I may suffer, or that my next of kin may suffer resulting from either my participation in any recreational activities in the controlled recreational area, or my presence around the recreational activities in the controlled recreation are, DUE TO ANY CAUSE WHATSOEVER, INCLUDING NEGLIGENCE, BREACH OF CONTRACT, OR BREACH OF ANY STATUTORY OR OTHER DUTY OF CARE, INCLUDING ANY DUTY OF CARE OWED UNDER THE OCCUPIERS LIABILITY ACT R.S.B.C. 1996, c. 337,  ON THE PART OF THE RELEASEES, AND ALSO INCLUDING THE FAILURE ON THE PART OF THE RELEASEES TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF ANY RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATION AREA REFERRED TO ABOVE.

[31]         As noted, the Release refers to the releasor’s “participation in any recreational activities in the controlled recreational area” or presence around those activities.  At the top of the Release, the term “recreational activities in the controlled recreational area” is defined as follows:

DEFINITION: In this agreement, the term “recreational activities in the controlled recreational area” shall include all activities or involvement in any way connected or associated with lift accessed & non-lift accessed activities within the controlled recreational area; including but not limited to skiing, snowboarding, telemark skiing, cross country skiing, golfing, hiking, sight seeing or mountain biking throughout the controlled recreation area or with orientation, instruction, training or guiding given by THE OPERATORS.

[32]         Furthermore, the Release provided that the releasor assumed certain risks.  In a section headed “Assumption of Risks”, the Release provided:

ASSUMPTION OF RISKS: I am aware that recreational activities in the controlled recreational area involves many risks, dangers and hazards including, but not limited to; boarding, riding or disembarking lifts; changing weather conditions; exposed rock, earth, or other natural or man made objects; trees, tree wells, tree stumps and forest dead fall; changes or variations in the terrain which may create blind spots or areas of reduced visibility; changes or variations in the surface or sub-surface; streams, creeks; collision with lift towers, fences, equipment, vehicles or structures; collision with other participants, spectators or bystanders; negligence of other participants, spectators or bystanders; and NEGLIGENCE ON THE PART OF THE OPERATOR INCLUDING THE FAILURE ON THE PART OF THE OPERATORS AND THE PROVINCE OR ITS STAFF TO SAFEGUARD OR PROTECT ME FROM THE RISKS, DANGERS AND HAZARDS OF RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA.  I am also aware that the risks dangers and hazards referred to above exist throughout the controlled recreational area and that many are unmarked.

I AM AWARE OF THE RISKS, DANGERS AND HAZARDS ASSOCIATED WITH RECREATIONAL ACTIVITIES IN THE CONTROLLED RECREATIONAL AREA AND I FREELY ACCEPT AND FULLY ASSUME ALL SUCH RISKS, DANGERS AND HAZARDS AND THE POSSIBILITY OF PERSONAL INJURY, DEATH, PROPERTY DAMAGE AND LOSS RESULTING THEREFROM.

[33]         On its face, the Release is very broad.

[34]         The Release specifically identified the risks of boarding, riding, or disembarking the lifts. It excluded liability resulting from the releasor’s participation in “recreational activities in the controlled recreational area” which included activities or involvement in any way connected or associated with lift accessed and non-lift accessed activities the Release covered.  It also excluded liability for the negligence of the Operator and its staff, including in safeguarding the releasor from the risks, dangers and hazards of recreational activities in the controlled recreational area, which as defined, included activities associated with lift accessed activities.

[55]         Coming back to the central allegation here, that the employee failed to press the stop button in time, the plaintiff has advanced no argument that would explain how that type of alleged employee failure could be considered to amount to mechanical breakdown or equipment failure.  There is no suggestion of any evidence that there was mechanical breakdown or failure of equipment. 

[56]         I conclude that the scope of the Release is sufficiently broad to encompass the plaintiff’s claim against the defendant based on alleged negligence of the chairlift operator in delaying in pressing the stop button immediately upon seeing the plaintiff fall.   I am satisfied that this is the only evidence of possible negligence that has been put forth by the plaintiff, and that this conduct does not fit within the exclusion clause in the Release.  Given my conclusion that such conduct would fall within the scope of the Release, the defendant must succeed in this application. 

[57]         The plaintiff’s claim is therefore dismissed.