ICBC Law

Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, addressing whether the Rule 15 Costs ‘cap‘ can apply to non-Rule 15 lawsuits that proceed to trial but result in judgement below $100,000.  In short the Court ruled that the cap should apply in these circumstances.

In last week’s case (Affleck v. Palmer) the Plaintiff sued the Defendants for damages.  The claim was not filed under the fast track provisions of Rule 15.  The case proceeded by way of summary trial under Rule 9-7 and was successful.  The judgement is unclear of the damages awarded but they were apparently over $25,000 under $100,000.  The summary trial lasted one day.

The Plaintiff brought an application for lump sum costs of $8,000 under Rule 15-1(15).  Mr. Justice Brown agreed that this was appropriate even though the lawsuit was not filed under the provisions of Rule 15.  In reaching this conclusion the Court provided the following reasons:

[4] Rule 14-1(1)(f) states that costs payable under the Civil Rules or by court order must be assessed as party and party costs under Appendix B, unless:

…

(f)         subject to subrule (10) of this rule,

(i)         the only relief granted in the action is one or more of money, real property, a builder’s lien and personal property and the plaintiff recovers a judgment in which the total value of the relief granted is $100,000 or less, exclusive of interest and costs, or

(ii)        the trial of the action was completed within 3 days or less,

in which event, Rule 15-1(15) to (17) applies to the action unless the court orders otherwise.

[5] There are other exceptions under Rule 14-1(1), but subsection (f) is the significant one in this case. Rule 14-1(10), which pertains to plaintiffs who recover in this Court a sum within the jurisdiction of the Provincial Court, does not apply in this case.

[6] Rule 15-1(15)(a) states a party in a fast track action is entitled to costs of $8,000, exclusive of disbursements, if the time spent on the hearing is one day or less, unless the court orders otherwise or the parties consent.

[7] I agree with the plaintiffs that although they had proceeded by way of summary trial and did not file a notice of fast track action, the wording of Rule15-1(1) governs and the action qualifies as a fast track action under Rule 15-1(1)(a) or 15-1(1)(b).

[8] As the plaintiffs point out, because they claimed various forms of relief under the Business Corporations Act, S.B.C. 2002, c. 57 [Business Corporations Act], it is arguable they were claiming more than monetary relief. Even so, the action still completed under Rule 9-7 in less than one day.

[9] The plaintiffs submit it would be appropriate for me to order $8,000 in costs. This represents the amount payable in a fast track action; and, despite the fact that the plaintiffs proceeded by way of summary trial under Rule 9-7, the plaintiffs submit an order for $8,000 in costs is appropriate in this case. I find the $8,000 set out in Rule 15-1(15)(a) is appropriate in this case.

This case is also a useful precedent because as set out in paragraph 8 the Court suggests that Rule 15 applies regardless of quantum provided the trial takes three days or less.

This case is worth reading in conjunction with the recent case of Johnson v. Axten which held that the Rule 15 costs cap can apply to pre-trial settlements of under $100,000 even if the case was not prosecuted under the fast track rule.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing non-pecuniary damages of $70,000 for a serious thumb injury.

In this week’s case (Dobre v. Langley) the Plaintiff cyclist was struck by a vehicle.  He suffered a right thumb “Bennett Fracture” (a fracture at the base of the thumb where it connects with the wrist).  The Plaintiff was 20 years old at the time of injury.  He required surgery to fix the fracture.  Unfortunately the Plaintiff was left with limitations of the thumb and these were expected to continue and worsen with age with the onset of post-traumatic arthritis.  In assessing the non-pecuniary damages at $70,000 Mr. Justice Brown provided the following reasons:

[58] While there are some discernible slight divergences between the opinions of Dr. Gropper and Dr. Smit, in substance they are not large ones. I accept that within the span of 15 years Mr. Dobre will experience some worsening of his degenerative arthritis that carries with it a risk that by middle age it could become severe and accompanied by a corresponding decline in function. There is also a chance Mr. Dobre could make his way into his middle age years without experiencing a significant decline in function, but the chances are greater that he will do so by then. While confident predictions about his needing future surgery are not possible, given the early onset of degenerative changes and the nature of his fracture, there is at least some risk he will require future surgery with doubtful benefit.

[59] Mr. Dobre feels dull intermittent pain at the base of his thumb, where the surgical nails were inserted. Moreover, his grip is weaker and his thumb is stiff. Prolonged grabbing and pulling brings the rapid onset of piercing pain. Prolonged writing causes discomfort and his thumb discomfort bothers him when he is writing university exams. In his part time job as a librarian, he finds he cannot hold many books when sorting them throughout the library. Due to his injury, he has to hold the books in an awkward position to avoid stressing the thumb…

[92] I find Mr. Dobre’s injuries are more akin to those in Tsougrianis, in which the 22 year old plaintiff suffered fractures to both thumbs, one of which required surgery, soft tissue injuries to her neck and back, and tendonitis.  The Court found the soft tissue injuries and tendonitis would heal within a year of the trial.  With respect to the thumb injuries, the Court found the plaintiff’s right thumb injury had largely resolved itself by trial and there was “not a substantial possibility” the left thumb injury was a permanent functional disability: Tsougrianis, at para. 35.  Furthermore, the Court found the plaintiff’s pain, strength and gripping difficulties in the left thumb would eventually disappear with exercise and further surgery, with the exception of “fine precision” handiwork:Tsougrianis, at para. 36. This is not the case for Mr. Dobre.   Given the permanence of Mr. Dobre’s right thumb disability and the likely onset of arthritis, his injuries, all factors considered, appear somewhat worse than those of the plaintiff in Tsougrianis.

[93] I find an award of $70,000 for non-pecuniary damages is appropriate in the circumstances if the $5,000 assessed for loss of home making/maintenance capacity is included in that amount. I therefore award $70,000 for non-pecuniary damages, an amount that includes a specific segment of $5,000 for loss of home making/maintenance capacity.

This case is also worth reviewing for the Court’s discussion of diminished earning capacity.   Given the Plaintiff’s young age he had no set pattern of earnings prior to the injury.  In these cases it is more difficult to predict the consequences of injury on long term employment.  Mr. Justice Brown assessed damages of $60,000 for diminished earning capacity in doing so made some practical comments at paragraphs 65-74 of the reasons for judgement.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the issue of fault when a cyclist is struck by a vehicle while riding their bicycle in a marked cross-walk.

In today’s case (Dobre v. Langley) the Plaintiff intended to cross Martin Drive in Surrey, BC.  He approached  a marked cross-walk, activated the pedestrian lights, mounted his bike and began to cycle across the cross-walk.  At the same time the Defendant was driving near the middle lane of Martin Drive.  She “never saw” the Plaintiff prior to impact and was “completely oblivious to his presence until after impact.“.

The court found that while the Plaintiff lost his statutory right of way by riding his bike in a cross-walk the Defendant still owed a duty of care and was in breach of this by driving carelessly.  The Plaintiff was also found 15% at fault for riding in the cross-walk.  Paragraphs 31-49 of the reasons for judgement do a good job discussing the legal principles in play in these types of cases.  In coming to a 85/15 split of fault Mr. Justice Brown provided the following useful comments:

[41] In the circumstances of this case, particularly Mr. Dobre’s decision to ride across the intersection crosswalk, which heightened his duty of care, he either should have waited longer at the curb to ensure the defendant was responding to the pedestrian warning lights, or at least have more carefully monitored the defendant’s approach to ensure he could proceed safely. Had he noticed sooner that the defendant was not reducing her speed, he likely could have gotten completely ahead of harm’s way. Mr. Dobre’s decision to ride his bike across the intersection, and his resulting heightened duty, required at least those simple steps to maximize the chances the defendant was noticing him and to ensure his own safety….

[47] By any fair measure, Mr. Dobre did exercise a considerable degree of care. He stopped at the curb, straddling the bike. He looked west and east. He saw the defendant well to the east. He mistakenly reasoned she was far enough away to give him no reason for concern, especially, he thought, with the warning the flashing lights would give. He mounted the seat. He pedalled across the intersection slowly. When he saw the defendant at the last moment, he pedalled a few hard strokes, almost succeeding in removing himself from harm’s way. Apart from his one glance in either direction before pushing the button, however, he paid no further regard to Ms. Lang’s approach.

[48] In the case at bar, Mr. Dobre, for the reasons stated, owed a heightened duty of care. The defendant, for her part, was approaching a well-marked crosswalk and, in the circumstances, should have been extra vigilant in maintaining a lookout for those who might be approaching or in the crosswalk.

[49] Considering all the circumstances, I find the apportionment that fairly reflects the parties’ relative blameworthiness is an 85/15 split in liability, favouring Mr. Dobre. Mr. Dobre will thus recover 85% of his damages, to which I now turn.

In what I believe is the first award of its kind, damages of $30,000 were recently allowed in a BC personal injury claim for the purchase medical marijuana to help manage the consequences of chronic pain.

In reasons for judgement released earlier this month (Joinson v. Heran) the Plaintiff sued the Defendant surgeon for medical malpractice.  The Plaintiff’s claim was in part successful and damages of just over $310,000 were awarded including a $30,000 cost of future care assessment for medical marijuana.  Mr. Justice Brown provided the following reasons setting out his legal analysis in allowing this claimed damage:

[420] As a judge of the law, I cannot make orders that directly or indirectly endorse unsanctioned accessing of medical marijuana. At the same time, my role is now to assess medical needs and necessities. It is the responsibility of Dr. Surgenor and Dr. Bright, as Mr. Joinson’s treating physicians, to address professionally these medical questions and to ensure Mr. Joinson’s medical use of marihuana complies with the rules and regulations. Ultimately, however compensation claims for medical use of marihuana, either as a special damage claim or as a future cost of care claim, must be assessed based on recommended guidelines and on costs charged by legally authorized dispensaries. All said, the foundational principle for an award of a cost of future care is that the expense must be both medically justifiable and reasonable on an objective basis. It is not enough to show merely that it is beneficial; the medical evidence must show it is reasonably necessary:Andrews v. Grand and Toy Alberta Ltd., [1978] S.C.J. No. 6, at para. 120; Aberdeen v. Langley (Township), Zanatta, Cassels, 2007 BCSC 993, at para. 198; Strachan v. Reynolds et al., 2004 BCSC 915, at para. 632.

[421] There is no bright line distinguishing mere benefit and reasonable necessity in this case. But with basic reasoning and application of the above stated legal principles it can be drawn, if roughly. Pain control and its contribution to Mr. Joinson’s ability to function to his maximum potential are core considerations here. Without use of medical marihuana or a synthetic substitute, Mr. Joinson would have to increase his use of morphine, which is detrimental, particularly to his functioning: he does not function as well, physically or mentally, without use of medical marihuana. His treating physicians endorsed this treatment option, supporting him in his use of medical marihuana. Other physicians may disagree, but his family physician and psychiatrist see him on a regular basis and, in this particular instance, are in the best place to consider what is medically necessary.

[422] The issue remains controversial and is one which more research and clinical experience must ultimately decide, or at least reveal clearer parameters for the safe and effective use of medical marihuana or its synthetic derivatives. Meanwhile, I find the medical evidence supports a finding that compensation for some medical use of marijuana is reasonably necessary in this case. However, I cannot find for compensation based on the quantity used by Mr. Joinson in his claim for exemption or on amounts he has been paying to purchase products from the TAGGS dispensary. The award will based on a maximum of 5 grams per day, and priced as if purchased from a Health Canada legally authorized source, or, alternatively, at the cost of the medically equivalent amount of a synthetic substitute such as Cesamet.

[423] Ultimately of course, any award must make allowance for the fact Dr. Heran’s errant surgery is not responsible for providing Mr. Joinson with a lifetime supply of medical marijuana, certainly not for the portion Mr. Joinson would have used for recreational purposes, irrespective of any of his surgeries. Moreover, I need to account for the medically beneficial effects of his participation in a chronic pain program, notably anticipated benefits that should help reduce his need to use pain medications….

[431] Therefore, I award $30,000 for costs of medical marihuana.

When Plaintiffs attend defence medical exams some doctors require patients to fill out questionnaires and waivers of liability.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law and concluding that Plaintiffs cannot be forced to sign waivers through the Court ordered independent medical exam process.

In today’s case (Mund v. Braun) the Plaintiff was involved in a motor vehicle collision and allegedly sustained some complex injuries.  In the lawsuit the Plaintiff agreed to attend a defence medical exam with a neurologist (Dr. Makin).  Dr. Makin requested that the Plaintiff sign a waiver form indicating that the Plaintiff “will not sue Dr. Makin outside of BC.”.  As previously discussed, BC law provides doctors with a strong immunity from lawsuits arising from carelessness in the independent medical examination process.  The reason for this waiver was to apparently protect the doctor against the remote chance that the Plaintiff could sue outside of BC.  The Plaintiff refused to sign the waiver.

The Defendant brought a motion and the BC Supreme Court was asked to decide whether the Plaintiff could be forced to sign such a waiver.  Mr. Justice Brown dismissed this motion finding that unless the Court of Appeal rules otherwise the law is settled that BC Courts don’t have jurisdiction to force plaintiff’s to sign such waivers.  In addressing this point Mr.  Justice Brown held as follows:

[38] In any case, on the question of requiring the plaintiff to sign the Jurisdiction agreement, I am bound by Desjardins (Litigation guardian of) v. Huser, 2010 BCSC 977; Kobzos v. Dupuis, 2006 BCSC 2047; Stead v. Brown, 2010 BCSC 312; Peel Financial Holdings Ltd. v. Western Delta Lands, 2003 BCCA 180; Rafferty v. Power (1993), 15 C.P.C. (3d) 48 (BCSC); and Allan-Trensholme v. Simmie, [2006] B.C.J. No. 720 (BCCA). I do not have jurisdiction to order the plaintiff to sign the Jurisdiction Agreement. On the narrow point of whether jurisdiction remains with the court under the Civil Rules to require a party to sign an authorization for documents in the possession of a third party but over which the party has sufficient control, e.g. the party’s clinical records kept by their physician, that is governed by the cited cases until such time as the Court of Appeal specifically rules on that. For now, the general question appears settled; and as for the facts at bar, in my view, the consent in this case falls squarely within the ambit of the authorities cited.

This case is also worth reviewing for the Court’s discussion of the extent of testing that can take place during a Court ordered exam.  Dr. Mund wished to conduct electro-diagnostic testing of the Plaintiff.  The Plaintiff refused.  Mr. Justice Brown held that this test was permitted and in so finding stated as follows about doctors discretion during the testing process:

[16] I accept Dr. Makin’s explanation that electro-diagnostic studies are considered an extension of neurological examinations. I find the testing is minimally invasive, and would not invade the plaintiff’s privacy…

[19]         Given the variety of causes attributed to the plaintiff’s symptoms, which include thoracic outlet syndrome, myofascial factors, soft tissue pathology in the neck and right shoulder, cervical spine disc disease with a degenerative factor and even diabetes II, diagnosis is obviously a not straight forward exercise in this case.

[20]         I am satisfied nerve conductions studies are relevant to the issues raised and the pleadings and in the medical reports written for the plaintiff. The defendant submits there is at least a possibility the plaintiff’s tingling and numbness could result from degeneration in his cervical spine or unrelated nerve problems in his right arm; and the origin and causation of his neck, shoulder and arm symptoms are related to the pleadings.

[21]         I also agree that affording Dr. Makin leeway to conduct nerve conduction studies he sees as necessary is required in order to ensure reasonable equality between the parties. The studies will not necessarily duplicate earlier ones. An electro-diagnostic study is a reasonable extension of the clinical examination if the examining physician comes to judge it necessary to form, or confirm, their professional diagnostic opinion.

[22]         Therefore, the plaintiff will submit to electro-diagnostic testing by Dr. Makin if requested to do so.

The first judgement that I’m aware of dealing with the new formal settlement offer rule (Rule 9) was released today by the BC Supreme Court.

In today’s case (Demarzo v. Michaud) the Plaintiff was injured in a BC motor vehicle collision.  He went to trial and was awarded $356,000 in total damages.  (you can click here to read my post summarizing the trial judgement).  Prior to trial the Plaintiff made a formal settlement offer to resolve the claim for $150,000.

Having comfortably beat his pre-trial settlement offer the Plaintiff asked the Court to exercise its discretion and award double costs under Rule 9-1 (Rule 9 reads almost identically to the old Rule 37B.  You can access my archived posts dealing with Rule 37B by clicking here).

Prior to trial the Plaintiff obtained various independent medical reports.  The Plaintiff served these on the Defendant in compliance with the rules of Court but not as quickly as possible.  In an interesting application of the new rule Mr. Justice Brown held that double costs should not be ordered if a party failed to make “timely disclosure of documents“.  Specifically the Court held as follows in refusing to award the Plaintiff double costs:

[18]         The main purpose of Rule 9-1 is to encourage parties to settle, early if possible. But the purposes of the Rule, and modern practice, assumes timely disclosure of documents and reports that would significantly affect a party’s ability to make a rational assessment of the litigation risks they face. While it is true the Rules of Court provide parties means to discover facts and the parties can conduct their own investigations to assess litigation risks, in my view it is also incumbent on a party expecting an order for double costs to show timely disclosure of documents and reports that would have significantly affected the other party’s assessment of whether the offer ought reasonably to be accepted.

[19]         Further, while evidence at trial produced a judgment that was more than double what the plaintiff offered to settle for, I note that the plaintiff’s credibility, tested on cross-examination, and the specialist reports served in October 2009 were important factors in the damages awarded.

[20]         Considering these factors, I find an award of double costs is not in keeping with the purposes of the Rule and I decline an award.

If a driver loses control of their vehicle resulting in a collision causing you injury they will always be found negligent in a personal injury lawsuit, right?  Not necessarily.  Reasons for judgement were released today by the BC Supreme Court demonstrating this.

In today’s case (Geiger v. Schmidt) the Plaintiff sued for compensation as a result of injuries she sustained in two BC motor vehicle collisions.  In the first crash the Plaintiff was a passenger in her own vehicle.    The vehicle was travelling on Highway 99 just South of Vancouver.  The posted speed limit was 100 kmph.  The road conditions were poor due to winter weather.  The driver slowed to 70 kmph to take this into account.  The Plaintiff asked the driver to slow further and put the vehicle into four-wheel drive.  Before the driver did so the “back end of the vehicle slid.  It spun 360 degrees, collided with the median, bounced off it, went into another spin and then struck it a second time“.

The Plaintiff was injured in this crash and sued for damages.  The driver argued that he was not at fault and did nothing careless.  Mr. Justice Brown agreed and dismissed the lawsuit.  In doing so he provided the following analysis:

[44]         In my view, given the fact the defendant was attuned to the conditions he was facing and had responded to them by lowering his speed by almost one-third, the negligence question in this case comes down to deciding whether he failed to exercise all reasonable care because he failed to comply with the plaintiff’s suggestion by lowering his speed and transferring the driveline to four wheel drive before he lost control. In other words, did exercising all reasonable precautions encompass disregarding his own assessment and complying with the plaintiff’s suggestion?

[45]         In some circumstances, reasonable drivers assessing driving conditions would consider the suggestions of passengers, especially when the driver is inexperienced or less familiar with the road then the passenger. In many cases, the passenger’s recommendation will correspond with the most objectively reasonable precaution.

[46]         However, the driver is ultimately responsible for assessing the objective conditions and responding in a reasonable way. In the circumstances of this case, I find the defendant’s failure to follow the plaintiff’s suggestion to slow down and transfer to four-wheel drive is not sufficient to satisfy the plaintiff’s burden of establishing the defendant was negligent.

[47]         Further, I heard no evidence of what speed would be low enough in the conditions the defendant was facing to prevent a loss of control and the spin outs that followed. There was no evidence to show that, had the defendant switched into four-wheel drive or reduced his speed, he could have avoided the accident. A judge can take judicial notice of the natural correlation between higher speed and decreased traction; but such common knowledge does not licence a leap from that to a conclusion the defendant likely would have avoided the accident if the plaintiff had agreed with the plaintiff and lowered his speed.

[48]         This is not a case of a driver ignoring passenger pleas to slow down while driving at a speed all reasonably cautious drivers would consider unsafe in the circumstances.

[49]         The standard of care is not perfection. There is no evidence the defendant was inattentive or indifferent to road conditions. His decision to delay transferring to four wheel drive until he felt ready doing so was not unreasonable. The vehicle was equipped with snow tires. The temperature was around 4 degrees centigrade. The defendant was exercising reasonable caution by driving a full 30 kph below the posted speed limit.

[50]         As in Nason, I find insufficient evidence to show the defendant in these circumstances was negligent: at best, the weight of the evidence hangs evenly in the balance. I find the plaintiff has failed to satisfy the burden of proof and so I must dismiss the plaintiff’s claim against the defendant.

Prior to dismissing the lawsuit Mr. Justice Brown canvassed several recent authorities which address fault in collisions where a driver loses control and the case is worth reviewing in full for anyone interested in this area of law.  You can also click here to read my archived posts addressing fault for BC crashes where a driver loses control due to road conditions or other hazards.

Two judgements were released this week by the BC Supreme Court dealing with issues relating to civil claims arising in the context of alleged sexual assaults.  The first case dealt with improper statements during closing arguments to a jury, the second with disclosure of records relating to a criminal prosecution.

In the first case (RK v. BR) the 17 year old Plaintiff became intoxicated at a party.   The Plaintiff “stopped at his best friend’s home to see if he could spend the night“:.    His friend was not home but his friend’s father let him spend the night.  The defendant (the father) “sexually assaulted the plaintiff later that night.”

The Plaintiff sued for damages and selected trial by Jury.   The Defendant admitted to the assault and during the course of the trial conceded that the Plaintiff was entitled to some damages.  The question was what amount was appropriate.

During closing arguments the Plaintiff’s lawyer made statements to the Jury that the Defendant objected to.  Particularly the Plaintiff’s lawyer  ”questioned the defendant’s decision to stay in the courtroom while the plaintiff testified. He suggested the jury could infer the defendant had remained in court to intimidate the plaintiff, or to draw pleasure from seeing his victim again. He also suggested the jury could infer that the defendant had been grooming the plaintiff for a sexual encounter. Plaintiff’s counsel also suggested to the jury that the plaintiff would see the defendant’s face whenever he made love.”

The Defendant argued that these comments were inappropriate and inflammatory and asked that the judge dismiss the Jury.    Mr. Justice Brown reluctantly granted the motion.  In doing so he provided the following reasons:

[25]         Considering all the circumstances and applying the above framework to the case at bar, I find that the impugned portions of counsel’s submissions were highly prejudicial. First of all, the submission that the plaintiff will see the defendant’s face every time he makes love for the rest of his life has no foundation in the evidence. It was a highly speculative statement, with the sole purpose of inflaming the jury against the defendant. Counsel for the plaintiff says the statement did have a basis in the evidence because the plaintiff testified that he remembered the assault a couple of times a week, sometimes upon waking. He says Dr. Pulleyblank’s evidence that similar situations could trigger painful memories is a further factual basis for his argument.

[26]         This argument is unconvincing. The evidence counsel relies on does not support the inference he asked the jury to draw; especially given evidence from the plaintiff that directly contradicts this statement. The plaintiff testified that since the assault he has had a positive sexual experience. There was also evidence that the plaintiff’s symptoms of posttraumatic stress disorder have diminished over time. To suggest the plaintiff would see the defendant’s face every time he made love for the rest of his life was more than mere rhetoric verging on the extravagant; it was a highly inflammatory statement that had no basis in the evidence.

[27]         Likewise, counsel’s statement that the defendant groomed the plaintiff for a sexual encounter by inviting him to sleep over and providing him with alcohol has no basis in the evidence. Counsel says the basis for it lies in several statements made during trial. He relies on the statement of the plaintiff’s mother that two or three months earlier the defendant had phoned to ask if the plaintiff could sleep over. Counsel for the plaintiff also points to the plaintiff’s testimony that the defendant sometimes bought beer for his son and his friends. He also relies on the defendant’s testimony that in his youth he arranged consensual sexual acts with other males by asking them to ‘sleep over’. He says these statements, taken together, provide a basis for the jury to draw an inference that the defendant was grooming the plaintiff for a sexual encounter.

[28]         The evidence does not provide a foundation for the statement that the defendant was grooming the plaintiff. There is no evidence the assault was premeditated. The defendant admitted he had called the plaintiff’s mother at an earlier time, but this was at his son’s request and to let the plaintiff’s mother know it was all right for the plaintiff to sleep over. The plaintiff’s arrival on the defendant’s doorstep that evening was clearly unplanned. Again, the sole purpose of this statement was to inflame the minds of the jury against the defendant. It was improper and amounts to misconduct.

[29]         Counsel’s comments on the defendant’s presence in the courtroom were also inflammatory and prejudicial, and amount to misconduct, especially in light of the exchange of letters between the parties prior to trial. A party has a right to be in a courtroom. To suggest otherwise is improper. Even more improper is the suggestion that the defendant remained in court to intimidate or leer at the plaintiff. The defendant expressed a willingness to absent himself from the courtroom to spare the plaintiff’s feelings. Casting aspersions on a party for exercising his right to be present is misconduct. Suggesting a lack of empathy for remaining in court when counsel knew he had received a letter from the counsel for the defendant specifically offering to absent himself if doing so would make the plaintiff feel more comfortable is also misconduct.

[30]         Counsel’s submission significantly prejudiced the defendant. The submission was relatively short. Taking all of Mr. McLeod’s inflammatory and improper statements together, I concluded that if I were to try to disabuse the jury of these matters I would simply re-emphasize them in the jurors’ minds. If I instructed the jury to disregard these portions of counsel’s brief submission entirely, my comments would likely rebound against anything he had said and against the plaintiff’s case. I concluded that I could not right the scales of the resulting prejudices with instructions anywhere close to neutral again. I must ensure there is no prejudice to either side. I do not see how any corrective judicial comments could do anything but suggest that counsel had misled the jury, intentionally or not.

[31]         A judge discharges a jury with great reluctance. In this case, the jury was well constituted. They were attentive. At the beginning of the trial, I carefully explained their important role in the judicial system in British Columbia and the confidence placed in them. Discharging a jury in these circumstances embarrasses the court and, more importantly, tends to undermine public confidence in the justice system.

[32]         However, given the circumstances, and considering the potential prejudice, no less to the plaintiff’s case then to the defendant’s, it would be unfair to continue with the jury in the circumstances. The only appropriate response was to discharge the jury with the regrets and thanks of the court.

[33]         The defendant’s application to dismiss the jury and continue by judge alone is granted.

________________________________________________________________________________________________

The second case released this week addressed the ability of a party to have the BC Supreme Court order production of materials relating to criminal charges arising from allegations of sexual abuse.

In this case (The British Columbia College of Teachers v. British Columbia (Attorney General) ) a former teacher was “criminally charged with sexually offending against a child.“.  In the course of the prosecution a preliminary inquiry was held and the alleged victim testified.   The Attorney General stayed the prosecution before trial.

The BC College of Teachers wanted to access a copy of the transcript of the preliminary inquiry evidence to use against the former teacher in “disciplinary proceedings“.   The former teacher opposed this.

Madam Justice Griffin ordered that the records be produced and provided the following reasons:

[41]         In an analogous context of considering an ongoing publication ban, the Court of Appeal of this province considered that a trial judge’s analysis should not be based on whether a benefit to the administration of justice could be gained by the publication of redacted information, but rather, should be based on whether a serious danger could be avoided by declining to provide the information: Global BC, A Division of Canwest Media Inc. v. British Columbia, 2010 BCCA 169 at para. 72.

[42]         Here, so long as the information is provided in a way that protects the identity of the complainant and thereby maintains the publication ban, there is no danger to be avoided by declining to allow the sought-after information to be provided.  To put it another way, I do not consider that the administration of justice will be harmed if the preliminary inquiry transcript is produced to the College in a way that continues to protect the identity of the complainant.

[43]         I am therefore persuaded that this is a case where I ought to exercise my inherent jurisdiction to allow for production of a transcript of the preliminary inquiry to the College, in such a way as to continue to maintain the publication ban pursuant to s. 486.4(2).

[44]         In the circumstances of this case, I grant the following declaratory relief:

(a)      the publication ban imposed under s. 539(1) of the Code in relation to Abbotsford Provincial Court Registry file No. 60526, no longer applies, and thus does not apply to any request by the College for a copy of the transcript of the evidence that was taken at the preliminary inquiry; and

(b)      the continuing publication ban imposed under s. 486.4(2) of the Code will not be violated if the Crown redacts all information that could identify the child complainant from the transcript of the evidence that was taken at the preliminary inquiry in Abbotsford Provincial Court Registry file No. 60256 and produces the redacted transcript to the College for its use in disciplinary proceedings against Mr. Sidhu.

Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe.  Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI).  Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.

In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash.  She was 17 at the time.  She was a passenger in a truck that drove off the road and hit a tree.  The force of the collision “threw her head into the windshield hard enough to star it“.

All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash.  The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties.  Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime.   The case is worth reviewing in full for the Court’s discussion of this head of damage.  Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251]     Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252]     “Mild” describes the severity of the organic injury, not its effect.

[253]     Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254]     Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255]     The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

2 cases were released today by the BC Supreme Court dealing with non-pecuniary damages in auto-accident cases which I summarize below to add to this ever-growing free online  pain and suffering caselaw database.  The first case dealt with a soft tissue neck injury; the second with a ’significant’ low back soft tissue injury.

In the first case (Berry v. LaBelle), the Plaintiff was injured in a 2006 rear-end crash.  Fault was admitted leaving the Court to deal with the value of the claim.

The Plaintiff was a 42 year old drywaller at the time of the accident.  He sued for various damages including past loss of income and diminished earning capacity.  At trial he asked for some $600,000 in total damages for his injuries and losses.  He alleged that he suffered from left handed weakness as a result of the collision which negatively affected his ability to work.  After 4 days of trial, however, his claim proved largely unsuccessful being awarded $0 for his loss of income / diminished earning capacity claims.  The Court did find that the Plaintiff suffered a compensable injury and awarded the Plaintiff damages for non-pecuniary loss (money for pain and suffering and loss of enjoyment of life).

Specifically Madam Justice Baker found that “the only injury resulting from the motor vehicle accident…is a strain to the soft tissues on the left side of the neck“.  In assessing the Plaintiff’s non-pecuniary damages at $30,000 the Court noted the following:

[51] Nevertheless, I am satisfied that the strain to the soft tissues on the left side of Mr. Berry’s neck did cause him discomfort for several months after the accident, although it appears that injury did not actually impair range of motion in the neck.  Mr. Berry had full range of motion in his neck the day after the accident; Dr. Fehlau described the range of motion as “good” when Mr. Berry was seen at her clinic on August 17, 2006.  Massage therapy alleviated the discomfort but only temporarily; physiotherapy had more lasting benefits.  The pain did not incapacitate Mr. Berry at work, although he modified some of his tasks to accommodate the injury.

[52] By no later than October 2006 – seven months after the accident, Mr. Berry had returned to his favourite recreational activity – dirt-biking.  According to Mr. Berry’s description, and those of his friend Mr. Van Lingen, cross-country dirt-biking is a very strenuous and even hazardous recreational activity.  Mr. Berry told Dr. Fehlau on October 24, 2006 that his neck became sore after one-half hour of dirt-biking.   I accept that Mr. Berry initially moderated the intensity of his dirt-bike excursions.  However, Mr. Van Lingen testified that before the bike accident in September 2008, Mr. Berry was back to riding as he had before the March 2006 motor vehicle accident.

[53] Mr. Berry and his wife both testified that the neck discomfort had a negative effect on their sexual relationship.  They testified that before the accident, they had sexual intercourse two or three times every day, but that the frequency diminished after the accident because Mr. Berry experienced neck pain during intercourse, particularly when certain positions were attempted.  Mr. Berry and his wife both testified that Mr. Berry was less patient and more irritable when his neck was sore.

[54] Mr. Berry testified that he has given up river kayaking and golfing because of his injuries but I am not persuaded this is true.  Mr. Berry has not made a serious attempt to engage in either of these activities since the accident.  He testified he had gone kayaking once on a lake, and had not attempted river kayaking.  He had not attempted to play golf.  Given that Mr. Berry has been able to continue to do very heavy physical labour at work, and resumed cross-country dirt-biking within seven months after the accident, I do not accept that he is incapacitated from playing a few games of golf annually, or kayaking on a river.  I think it more likely that Mr. Berry has changed his recreational focus to activities he can enjoy with his wife and young son, and to a new interest – on-line computer games – which Ms. Schroeder testified that Mr. Berry plays for hours at a time.

[55] I am satisfied that Mr. Berry has recovered from the injuries caused by the accident.  I consider that an award of $30,000 to be adequate compensation for the temporary impact Mr. Berry’s neck injury has had on his enjoyment of life and, in particular, the discomfort he has experienced when lifting heavy materials at work; while engaging in strenuous recreational activities; and during intimate relations with his spouse.

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The second case released today (Demarzo v. Michaud) considered the onset of pain in a pre-existing but asymptomtic condition, namely a degenerative spine.

The Plaintiff was involved in a March, 2005 rear end collision.  Fault was admitted.  The Court heard evidence that the Plaintiff suffered from relatively severe back pain following this collision.  The parties differed on whether the Defendant was legally responsible for this.  The Defendant argued that he was not stating that the accident related injuries were minor and that a ‘pre-existing degenerative spine‘ and a subsequent event (an incident where the Plaintiff was lifting weights and aggravated her back pain) were responsible for the symptoms. The Defendant argued that the Plaintiff would have experienced her back pain as a matter of course even without the rear-end crash.  (note: this type of a ‘causation’ argument is often advanced at trial in personal injury lawsuits involving plaintiff’s with degenerative changes in their spine).

Mr. Justice Brown largely agreed with the Plaintiff and awarded just over $350,000 in total damages including $85,000 for her non-pecuniary damages.  Specifically he found that the Plaintiff suffered from a “significant soft tissue injury to her lower back” which resulted in chronic symptoms.   In navigating through the Defenses raised and awarding damages Mr. Justice Brown noted the following:

[51] I find that the plaintiff sustained a significant soft tissue injury to her lower back but it is not possible to unravel the plaintiff’s clinical history in such a way that allows a conclusive evidentiary finding on the specific medical legal question of when the plaintiff sustained her annular tear.

[52] The plaintiff’s lower back symptoms have become chronic and I accept Dr. Leete, Dr. Filbey’s medical opinions that she will continue to experience intermittent lower back complaints, especially related to certain activities. This is far from what she was able to do before the accident.

[53] As for the defendant’s contention that the plaintiff’s landscaping activities produced her degenerated spine and that this is the ultimate cause of her symptoms, I prefer the opinions of Dr. Leete and Dr. Filbey that there is no sound medical basis for the proposition that because someone over the years has been active in sports and worked as a landscaper, they are necessarily predisposed to development of degenerative changes in the spine or that such changes are associated with back pain. I understood from the evidence of Dr. Leete and Dr. Filbey that one patient may present with images of a markedly degenerated spine and have no history of symptoms, while another patient may present with marked symptoms, and have images of a perfectly normal spine. I also find that there is no sound medical basis for concluding that the plaintiff would have suffered the symptoms and limitations that she has experienced or that her degenerative spine would have inevitably become symptomatic, absent inducement of symptoms by the trauma of the motor vehicle accident.

[54] The plaintiff’s position is that when she lifted the dumbbells, she experienced immediate onset of pain in the same area she injured in the accident; that this was an exacerbation of the plaintiff’s unresolved injuries; and that there is no evidence to show that she would have experienced her continuing symptoms but for the injuries she sustained in the accident. On the balance of probabilities, I agree with the plaintiff’s position. I find that but for the accident the plaintiff would not have suffered the pain and disability she experienced after accident, including the exacerbation of her injuries on May 29, 2005 and acute flare-up with neurological symptoms in November 2005…

[57] The plaintiff has never returned to her former work as a landscaper or to any of her former recreational activities, at least not with any degree of intensity. She is still unable to play volleyball, cannot run long distances, although she did try running in the last month but at a far lower level than before. She no longer exercises at the gym. She does not enjoy movies in theatres because she finds sitting for long periods very uncomfortable. She explained that the last time she went out with friends, she felt very uncomfortable, but suffered through it as she was too embarrassed to leave. Given her enjoyment of sports and active lifestyle shared with her husband, as well as the loss of her former capacity to be active, this represents a substantial loss for the plaintiff as a person and a spouse. Although the plaintiff will likely improve somewhat in the future, I accept that she will not ever be able return to her former level of participation in recreational activities or regain her former physical capacities; and will continue to experience varying degrees of chronic back pain that will necessitate alteration of her lifestyle.

[58] The accident depressed the plaintiff’s mood, leading to a marriage separation in early spring 2007. Mr. Saliken testified that the plaintiff became depressed, unhappy about living with him in Nanaimo, impatient and angry. Making matters worse was the apparent mindset of Mr. Saliken’s family, who were impatient with the pace of the plaintiff’s recovery and kept asking why she could not work. The plaintiff’s feelings of frustration, augmented by her feelings of diminishment in the eyes of her husband’s family, who she did not yet know well and who had “never seen how hard she could work”, and her feeling that she had become a drain on the household combined with other aggravating factors, ultimately led to arguments and her two months separation from her husband. Fortunately, their bond and commitment to one another were strong enough to allow the plaintiff and Mr. Saliken to weather these adverse emotional affects of the accident and they reconciled. Nonetheless, the plaintiff’s separation from her husband and her emotional distress are emblematic of the degree of suffering and loss of enjoyment of life the plaintiff has experienced. She is entitled to a substantial award for pain and suffering and loss of the enjoyment of life. Bearing in mind that while she will receive compensation for her loss of earning capacity, she has still lost the enjoyment and satisfaction she experienced in her chosen career. I award the plaintiff $85,000 for non pecuniary damages.