ICBC Law

(Image courtesy of Wikipedia)

Reasons for judgement were published this week by the BC Supreme Court, Victoria Registry, addressing the admissibility of QEEG Evidence in a brain injury claim.  In short the Court held that while such evidence may be admissible in appropriate cases, the evidence presented in the case was insufficient to meet the threshold test of reliability to admit “novel” evidence.

In this week’s case (Bialkowski v. Banfield) the Plaintiff was injured in a motor vehicle collision.  He allegedly suffered a traumatic brain injury.  In support of his claim he tired to introduce QEEG evidence  tendered through a neuropsychologist.  Mr. Justice Bracken declined to let the evidence in finding that the neuropsychologist was not properly qualified to introduce the QEEG evidence and further the evidence was not proven to be reliable.  In excluding the evidence Mr. Justice Bracken provided the following summary of his findings:

[3] Electroencephalography (“EEG”) is a means of recording the electrical activity of the brain.  Typically, electrical signals are received through 19 electrodes placed on certain areas of the scalp by attaching the electrodes to a cap that fits snugly over the patient’s head.  The electrical activity is then recorded either on paper, or digitally on a computer.  The clinician can then visually examine the recorded data to analyze the patterns of activity.

[4] QEEG is a relatively new neuroimaging technique.  It uses computer assisted analysis of EEG tests.  The raw EEG data is digitized and analyzed by means of a mathematical algorithm.  It is said that the computer analysis is capable of extracting more information from the raw EEG data and enables the clinician to observe more subtle anomalies than can be seen with the eye on standard visual analysis.  Using another program the digitized data is then compared to a normative database to determine if the data are consistent with what is normal for a comparable group of individuals…

[58] While there may be cases where QEEG evidence will be accepted as part of expert opinion in Canadian Courts it should only be through a neurologist who is trained and qualified in EEG testing and analysis.  In my view, only a trained electroencephalographer who has the skill, knowledge and training to recognize the potential for error is qualified to give opinion evidence of QEEG analysis.

[59] On the evidence presented in this case, I find the QEEG evidence to be novel science and not sufficiently reliable for admission into evidence on the principles established in J.L.J. andMohan.  I conclude it will not assist the trier of fact.  As science progresses this may change and the evidence may meet the test of reliability so as to be admissible at some point in the future.  As was noted in Seifert, the fact that expert evidence conflicts does not, by itself, make it inadmissible.  Coburn, et al, recognize this in the conclusion of their report at p. 23, where it is stated:

Used cautiously and with appropriate recognition of its limitations, QEEG offers the clinician an accurate laboratory test to aid in the detection and differential diagnosis of several common neuropsychiatric disorders.  …  Additional uses of QEEG showing promise but not yet sufficiently developed for routine clinical application include the prediction of medication efficacy and the prediction of the clinical cause of a disorder.

There is nothing in that conclusion to suggest it will become clinically useful in diagnosing traumatic brain injury in the near future; however, it remains open for such evidence to be offered through an appropriate expert if and when it satisfies the evidentiary requirements of Canadian Courts.

[60] The evidence of QEEG analysis given by Dr. Malcolm is rejected as not being offered by a qualified expert.  QEEG does not meet the requisite reliability threshold and is still novel science.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.

In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:

[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.

Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.

There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.

In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash.   The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.

The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist.  The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“.  The Defendants then requested the Plaintiff to be assessed by a psychiatrist.  The Plaintiff refused and this resulted in a court motion to force attendance.

Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“.  Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances:  Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010.  Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff just over $64,000 in total damages as a result of BC car crash.

In this week’s case (Elgood v. Ellison) the Plaintiff was injured in 2006 when he was struck by a vehicle in Langley, BC.  The Plaintiff was walking in a marked cross-walk with the right of way when the Defendant driver made a left hand turn and struck the Plaintiff.  Fault was admitted and the trial focused solely on the value of the Plaintiff’s claim.

The Plaintiff suffered minor injuries to his legs and neck which quickly and fully recovered.  His most serious symptom was low back pain which persisted from the time of the accident through trial.   The evidence accepted by the Court was that the Plaintiff had mechanical pain around the lumbar spine and that these symptoms may be an ongoing problem for the Plaintiff.

(highlighted portion of illustration depicts the lumbar spine)

In awarding the 65 year old Plaintiff $35,000 for his non-pecuniary damages Mr. Justice Bracken made the following notable findings:

[39]        Dr. Hirsch concluded that the plaintiff has made a full recovery with respect to his legs and that he had a relatively minor neck injury that has now essentially resolved.

[40]        The more difficult problem is the lower lumbar spine area and Dr. Hirsch said that this condition was likely caused by the accident.  He described it as likely mechanical in nature and that it is exacerbated by stress or loading on the back.  He believes that the plaintiff should continue his home-based exercise program and perhaps attend for structured appointments with a kinesiologist or physiotherapist.  He also thought that some exercise such as tai chi, yoga, pilates or water-based exercises would be helpful.

[41]        He concluded that the plaintiff’s restrictions were attributable to chronic low back pain that was caused by the accident and that the prognosis for complete recovery was guarded given the plaintiff’s age and the duration of the symptoms.

[42]        He did believe that the plaintiff should be capable of performing his domestic chores but that he may have to pace himself and that he will have ongoing problems with more strenuous activities such as lifting, snow shovelling or completing significant household repairs.  He did not foresee any need for future care or for any surgery.

[43]        In summary, it appears that the plaintiff’s leg and shoulder injuries resolved very quickly and his neck pain diminished gradually over time, to the point where it is now only occasional pain and of a non-debilitating nature.  He had some early headaches which have now become occasional.

[44]        The significant pain that the plaintiff suffers is chronic low back pain that Dr. Hirsch predicts will likely be with him for the foreseeable future.  No doubt the low back pain will prevent him from doing many jobs, particularly those that require long periods of sitting.  Given his age and background, it is most likely that sedentary jobs will most likely be what are available to him.  He has sharply reduced his recreation, although some of the intense recreational and physical activities engaged in by the plaintiff would likely diminish in intensity over time due to the normal aging process regardless of his injury.  He will likely still have the ability to engage in mild recreational activities. The plaintiff says that even mild recreation or physical activity is too painful for him.

[45]        As Dr. Hirsch pointed out at p. 6 of his January 20, 2009 report:

Three years have elapsed since Mr. Elgood suffered his low back injury in the subject motor vehicle accident.  Given the duration of his symptoms, the prognosis regarding complete resolution of his low back pain has to be viewed as guarded at this juncture.  Given the temporal profile to date, I would consider it more likely than not that Mr. Elgood will experience low back pain indefinitely.  Low back symptoms of sufficient intensity will probably limit his ability to perform tasks which biomechanically stress his low back…

[51] While the plaintiff has been able to carry on with work, he and his wife both said that he has only been able to do so by enduring a level of chronic pain.  Based on the opinion of Dr. Hirsch, which I accept, his condition is not likely to be alleviated over time.  Bearing in mind his age and the impact of his injuries on his personal life and work life since the accident, in my view, the range of damages is between that of the plaintiff and defendant and I assess general damages at $35,000.

Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, awarding total damages of just over $95,000 as a result of a 2005 BC Car Crash.

In today’s case (Mar v. Young) the Plaintiff was rear-ended while in a vehicle on the Island Highway near Nanoose, BC.   Fault was not formally admitted.  Mr. Justice Bracken found the rear vehicle 100% liable for the collision.

A physiatrist who gave evidence on behalf of the Plaintiff explained that he suffered from mechanical spine pain as a result of the collision and this was different from a soft tissue injury because “mechanical spine pain originates in the tissues that are part of the spine itself and not the muscle or soft tissue that surround the spine.  These tissues lay quite deep under the skin and provide support for the spine itself.”

In assessing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Bracken summarized the accident related injuries and their effect on the Plaintiff’s life as follows:

[37] On all of the evidence I conclude that the plaintiff suffered injuries to his thoracic and lumbar spine and that while his condition has improved he has not yet fully recovered.  The physical examinations conducted by Dr. Wahl and Dr. McKean indicate that the plaintiff has good range of motion of his neck and hips, but that he still has pain in his mid and lower back.  Both doctors testified that the plaintiff says that his pain and discomfort prevents him from carrying out his normal day-to-day activities of work and recreation, but the doctors disagree on his prognosis.  Dr. McKean considers it quite possible that the plaintiff will continue to experience some pain that will affect him for the foreseeable future.  Dr. Wahl is more optimistic and believes that there will at least be significant improvement and possibly full recovery.

[38] I find that the plaintiff still experiences pain 4 years post accident and it is likely that he will do so for some time to come.  It is clear from the evidence that he can carry out many of his normal activities, but not without some pain.  He has limited many of his activities somewhat and says that he is still prevented from participating in others.  There is no supportive objective medical evidence other than the disc bulge and early degeneration in the lumbar spine that Dr. Wahl considered to be within the normal range for the plaintiff’s age.  The plaintiff has been able to continue working, at times for long periods at a time, but he has experienced pain and discomfort and says that he must get up and move around and stretch at frequent intervals to ease his discomfort.  Former co-workers corroborate his evidence on his work related limits.  He purchased an expensive chair for use when he is working at his computer, but while it helps him, it does not completely eliminate pain and discomfort.

[39] The defendant noted that the plaintiff seemed to move easily and without obvious pain while he was in the courtroom.  I agree that the plaintiff seemed to have a reasonable range of flexibility when rotating from his hips and he could move his arms easily.  That does not seem inconsistent with the observations of both Dr. McKean and Dr. Wahl, but both note that the plaintiff continues to complain of pain in the mid to lower back.  The plaintiff testified that he still experiences some pain in that part of his back and his wife and friends corroborate his evidence.  There is no evidence before me to contradict that evidence.  No doubt the injuries have taken some time to resolve, but I accept that the plaintiff still has some pain and discomfort from the injuries caused by the accident.

[40] While each of the cases referred to above were cited as cases that had similar fact patterns, as it was stated in Tong v. Sidhu, above, no two cases are exactly alike and in the final result each case stands on its own facts.  In this case I find that the plaintiff’s injuries are more serious than the range suggested by the defendant.  The injuries have lasted with diminishing disability for 4 years and will likely continue to affect the plaintiff for a considerable period of time to at least some degree.

[41] The plaintiff has a sedentary job and to some extent that is an advantage as he is not likely to be exposed to the need for any hard physical labour in the course of his work.  However, he will likely spend the majority of his working life sitting at a desk working on a computer.  The impact of even mild pain or discomfort in his back will be a problem that will affect his concentration and ability to focus on his work.  He will have to take frequent short breaks from his work to compensate.  He will be at least somewhat limited in his recreational and home maintenance activities, although I accept Dr. Wahl’s view that the impact of his injuries will likely diminish over time as his condition improves and his disability lessens.

[42] On all of the evidence, it is my view that an award of $50,000 is appropriate for non-pecuniary damages.