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 ‘Mr. Justice Burnyeat’

$175,000 Non-Pecuniary Assessment for Brain Injury Leading to Early Onset Dementia

April 5th, 2018

Reasons for judgement were released today by the BC Supreme Court, Vancouver REgistry, assessing damages for a traumatic brain injury.

In today’s case (Weaver v. Pollock) the Plaintiff was injured in a 2010 collision that the Defendants accepted responsibility for.  The Plaintiff suffered a traumatic brain injury and ultimately was diagnosed with early onset dementia linked to this injury.  In assessing non-pecuniary damages at $175,000 Mr. Justice Burnyeat provided the following reasons:

[100]     I am satisfied that it is now established that mild traumatic brain injury or subdural haematoma can lead to Alzheimer’s disease, frontotemporal dementia, or an increased risk of dementia.

[101]     In his December 1, 2010 statement to ICBC, Mr. Weaver indicated that he had lost consciousness after the Collision. In his report, Dr. O’Shaughnessy assumes that Mr. Weaver lost consciousness but does not indicate how he arrived at that conclusion. On the other hand but without attribution, the notes of Dr. Burtt and Ms. Hubbard indicate no loss of consciousness.

[102]     I find that Mr. Weaver has proven on a balance of probabilities that he was unconscious for more than a several seconds as a result of the Collision. In this regard, I am satisfied that what Ms. Cotton observed when she came to the side of his truck is accurate and that Mr. Weaver was “kind of like waking”. I am satisfied that what Ms. Cotton observed was Mr. Weaver regaining consciousness.

[103]     Even if I am found to be incorrect in arriving at the conclusion that Mr. Weaver lost consciousness for a short period, I am satisfied that he did suffer a traumatic brain injury. In this regard, I adopt the indicia set out by Dr. Kiraly that a traumatically induced psychological disruption of brain function (a traumatic brain injury) can be manifested by “at least one” of any period of loss of consciousness, of loss of memory for events immediately before or after the Collison, and of alteration in mental state at the time of the Collision. I find that Mr. Weave manifested all three of those factors.

[104]     Taking into account the age of Mr. Weaver, I give very little weight to the decisions in Nahal, Goguen, and Watkins relied upon by the Defendants. I find that the decision in Wong, supra, most closely represents the facts presented by the effects of the collision on Mr. Weaver even though there was finding in Wong that the accident accelerated the onset of dementia. Here, I could find that there was no pre-disposition to dementia so that an award of non-pecuniary damages here should take that into account but not the advanced age of Ms. Wong.

[105]     Taking into account the increased risk factors in the future as set out in the opinion of Dr. Kiraly, the severity and duration of the pain at the back of his head, his shoulder and his chest, the impairment of his life, the impairment of his mental abilities, the loss of his lifestyle, the failure of his memory and ability to concentrate, the susceptibility and greater risk associated with Stage Four dementia, the impairment of his social, occupational, recreational function, and his age, I am satisfied that an assessment of non-pecuniary damages of $175,000 should be made.


Indivisible Injuries Cannot Get Around the Worker/Worker Defence to Recovery

October 19th, 2015

Update May 16, 2016 – the below decision was apparently appealed and a settlement was reached prior to judicial disposition.  For a case calling the below reasoning “highly debatable” you can click here.

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Adding to this site’s archives addressing the law of indivisible injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether the principle of indivisible injury allows a claimant to collect damages for a claim that is otherwise barred by the Workers Compensation Act.  In short the Court ruled that this cannot be done.

In today’s case (Pinch v. Hofstee) the Plaintiff was injured in a 2010 collision and sued for damages.  In 2013 the Plaintiff was involved in a second collision which proceeded through WorkSafeBC as both motorists were in the course of their employment at the time.

At the trial for the first collision the Court found that both crashes resulted in indivisible injury.  The general rule with indivisible injuries from two non at-fault events is that the Plaintiff can seek full compensation for these from a single tortfeasor.  In finding this general rule does not apply in the case of indivisible injuries contributed to by an event caught by the worker/worker bar Mr. Justice Burnyeat provided the following reasons:

[53]         Having concluded that the injuries suffered were indivisible, the question that arises is whether Mr. Pinch is in a position to claim against Mr. Hofstee for the injuries suffered by him in MVA #2.  Despite my conclusion that the injuries suffered by Mr. Pinch in MVA #1 and MVA #2 were indivisible, I nevertheless conclude that Mr. Pinch is not in a position to claim damages against Mr. Hofstee arising out of the injuries that were incurred as a result of MVA #2.  I am satisfied that the effect of s. 10 of the Act precludes seeking damages arising from what are said to be indivisible damages.

[54]         Section 10(1) of the Act makes it clear that the provisions of that Part of the Act are “…in lieu of any right and rights of action, statutory or otherwise, founded on a breach of duty of care or any cause of action…”  [emphasis added].  Therefore, s.10(1) refers not only to “rights of action” but “any right…founded on a breach of duty of care or any other cause of action…”  I am satisfied that the “right” to claim for recovery for indivisible damages is a right that is precluded by s. 10(1) of the Act, being a right which is separate and distinct from a right to commence an action.  In this regard, s. 10(1) provides not only that the provision of the Part of the Act is in lieu of “any right and rights of action…” founded on the breach of duty of care that Mr. Pinch may have against an employee or an employer but also that “no action in respect of it lies” and that “any right…founded in a breach of duty of care” is precluded.  I am satisfied that this precludes any right that Mr. Pinch may have which is founded on a breach of duty of care by Mr. Hofstee.

[55]         The purpose of this section of the Act is to remove from the jurisdiction of the court the ability to deal with the rights of employees such as Mr. Pinch and the liability of employers when personal injuries are suffered in the course of employment. In this regard see DiCarlo v. DiSimone (1982), 39 O.R. (2d) 445 (H.C.) and Mitrunen v. Anthes Equipment Ltd. (1984) 57 B.C.L.R. 287.  In Mitrunen, Gould J. dealt with an action against Dominion Construction Company Limited which was an employer and Anthes Equipment Ltd. that was not.  After citing with approval the decision in DiCarlo, supra, in deciding that he was not bound by the unreported decision in Middleton v. Chen (C810663‑October 25, 1982), Gould J. determined that the Act governed and that it relieved the non‑employer defendant for liability for damages caused by the fault of the employer defendant.  On appeal, (1985) 17 D.L.R. (4th) 567, Seaton J.A., on behalf of the Court made this statement:

Section 10 first, in s-s (1), takes away the plaintiffs right of action against his employer and against co-employees. Subsections (2) to (5) deal with compensation and the bringing of an action against others. Subsection (6) talks about the worker, his dependant or the board bringing an action against some person other than an employer or worker. Subsection (6) thus leads logically to s-s (7) which, in its beginning words, clearly encompasses actions against those not employers or fellow workers. What it then says is that in that action if it is found that the death was due partly to a breach of duty of the employer or worker, then no damages are recoverable for the portion of the loss or damage caused by the negligence of the employer or worker. It does not say no damages are recoverable against the employer or worker; it is simply no damages are recoverable. On the face of it that must mean against anyone. The subsection, as I have mentioned, deals with an action brought against some person other than an employer or worker and it deals with actions brought by workers, dependants or by the board. It does not appear to deal with actions against employers or workers; they are covered by s-s (1).

(at para. 14)

[56]         The statement of Seaton J.A. is clear – “No damages are recoverable”.  I am satisfied that the decisions in Mitrunen, supra, relieve a non‑employer defendant such as Mr. Hofstee from liability for damages caused by his or her fault.

[57]         Section 10(2) reinforces this interpretation as it describes the ability of Mr. Pinch to “claim compensation” or “bring an action”.  I cannot conclude that the ability to “claim compensation” expands the right of Mr. Pinch to claim against Mr. Hofstee that which he could not claim directly against the driver of the vehicle involved in MVA #2.

[58]         Section 10(7) of the Act also re-enforces this interpretation of s. 10(1) of the Act as it is clear that “no damages, contributions or indemnity are recoverable for the portion of the loss or damage caused by the negligence of that employer or worker…”  If no “damages, contributions or indemnity” are recoverable by Mr. Pinch against the other driver involved in MVA #2, I cannot conclude that the indivisible damages caused by the negligence of the individual who caused MVA #2 would be recoverable against Mr. Hofstee.

[59]         Section 10(7) of the Act is broad enough to exclude the ability of the Mr. Hofstee to claim contribution or indemnity against the driver involved in MVA #2: Storey v. Canada Post Corp. (2006) 55 B.C.L.R. (4th) 131 (C.A.) at paras. 42‑45.  It could not have been intended by the Legislature that there be an exception to the general rule that no damages were recoverable and that a claim for contribution was not available, but that the full amount of the damages from MVA #1 and MVA #2 would be available against Mr. Hofstee despite the fact that he would not be in a position to look to the driver involved in MVA #2 for contribution.  I conclude that the effect of s. 10(7) of the Act was intended by the Legislature to protect not only those who were immune from suit under the scheme created by the Act from exposure to joint liability but also those who were not in a position to call upon another tortfeasor for contribution.

[60]         I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred.  In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[61]         I propose to deal with the damages suffered by Mr. Pinch as a result of MVA #1 as if MVA #2 had not occurred.  However, despite finding that the damages suffered in the two accidents were indivisible, I will then assess separately those damages which I can attribute only to MVA #2.  I do so in order to comply with s.10(7) of the Act which requires that I determine “…the portion of the loss or damages caused by…[the negligence of the driver in MVA #2]…although the…worker is not a party to the action”.  While it may seem inappropriate to determine the loss or damage caused by the driver involved in MVA #2 where a determination has been made that the damages arising out of MVA #1 and MVA #2 are indivisible, where the driver involved in MVA #2 is not a party to these proceedings, and where there has been no finding of liability for MVA #2, I will nevertheless do so because that is what is required under s. 10(7) of the Act.


“All Actual Instructions Received by the Expert” Required by BC Rules of Court

October 19th, 2015

Reasons for judgement were released today (Pinch v. Hofstee) addressing the scope of expert instructions that need to be disclosed to make expert evidence admissible.  In short the Court noted that a “paraphrased summary of instructions” was insufficient.

In noting what Rule 11-6(1)(c) requires Mr. Justice Burnyeat provided the following reasons:

[1]             The parties presented a number of expert reports.  While some of the expert reports attached the instructions that were provided to the expert by counsel, some of the expert reports merely provided a paraphrased summary of instructions.

[2]             Rule 11‑6 of the Supreme Court Civil Rules provides that, for an expert report to be tendered in evidence, it must set out a number of matters including “the instructions provided to the expert in relation to the proceeding” [Rule 11‑6(1)(c)].

[3]             In order to meet the requirement of Rule 11‑6(1)(c), all actual instructions received by the expert should be appended to the expert report that is to be tendered into evidence.  It is not sufficient to satisfy Rule 11‑6(1)(c) to have the expert either to paraphrase the instructions received or to include some but not all of the instructions received.

[4]             The parties will be at liberty to file affidavits setting out the instructions that were provided to the experts who have provided reports which have now been tendered into evidence.


$110,000 Non-Pecunairy Assessment For Chronic Rotator Cuff Injury

September 29th, 2014

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic rotator cuff injury.

In today’s case (Pistruga v. Garcia) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff suffered a rotator cuff injury which underwent arthroscopic surgery which did little to improve the plaintiff’s chronic symptoms.  In addition to this the Plaintiff suffered from a major depressive disorder attributed to the consequences of this crash.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyeat provided the following reasons:

[100]     Mr. Pistruga is now 50.  I find that he has suffered and continues to suffer both physically and emotionally as a result of the negligence of Mr. Garcia.  I am also satisfied that his pain and suffering has resulted in an impairment of his family life – a restriction of his household duties and a deterioration of his relationship with his wife and son.  I find that Mr. Pistruga suffered severe pain for about three months after the First Accident and for about four months after the shoulder surgery.  Mr. Pistruga has had and continues to have pain in his shoulder.  As a result of the First Accident and the operation that was necessary as a result of the injuries suffered in the First Accident, he continues to suffer and I find that he will continue to suffer emotionally from the injuries caused by the First Accident and that his symptoms can only be partially lessened by prescription and non-prescription medicine.  While medication appears to have eased his mood swings, I find that he remains suspicious and moody from time to time as well as being subject to panic attacks.

[101]     As a result of the First Accident and the necessary operation, Mr. Pistruga has seen an impairment of his recreational activities as well.  Regarding his physical situation, I accept the opinion of Dr. Vorobeychik that the prognosis is “guarded”.  Regarding the emotional health of Mr. Pistruga, I accept the opinion of Dr. Levin that the prognosis for full recovery relating to his chronic major depression disorder “remains guarded and he most likely will require ongoing maintenance psychopharmacological treatment”.

[102]     In the circumstances, I am satisfied that non-pecuniary damages of $110,000 should be awarded.


Expert Opinions and the Garbage In Garbage Out Principle

September 9th, 2014

Much like the computer science principle of Garbage In Garbage Out, if an expert opinion is based on facts a Court does not accept than the opinions will ultimately be of little value.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this principle.

In this week’s case (Amini v.Khania) the Plaintiff was involved in a 2009 collision that the Defendant was at fault for.    The Plaintiff suffered from chronic neck pain and headaches following the collision.   The Defendant arranged a defense medical exam with a physician who minimized the connection of the collision to the Plaintiff’s chronic symptoms noting the plaintiff had degenerative changes and that “he likely would have become symptomatic regardless of the accident“.

In rejecting this opinion the Court noted that the physicians assumed facts differed from those accepted by the Court and provided the following reasons:

[33]         I prefer the diagnosis of Drs. Beheshti, Javidan, and Jordan over the diagnosis of Dr. Dommisse in this regard.  I make a number of findings of fact that are contrary to the facts assumed by Dr. Dommisse.  First, I cannot find that Mr. Amini worked seven days a week after the accident for a year doing gardening, paving and fence making.  I find as a fact that he did not return to his landscaping work immediately and, when he did, it was in a reduced capacity due to the physical limitations caused by the accident.  Second, the opinion of Dr. Dommisse appears to be based on very little knowledge of the pre-accident functioning of Mr. Amini.  It appears that Dr. Dommisse did not know how many days per week Mr. Amini worked delivering papers both before and after the accident and that he had “no idea” of the housekeeping duties of Mr. Amini before and after the accident.  In fact, Dr. Dommisse testified that, after the accident:  “… I would doubt that Mr. Amini does any housekeeping personally, but, again, as I said, I have – I have no idea.”

[34]         I also cannot conclude that the degenerative changes described by Dr. Dommisse would have become symptomatic inevitably.  I am satisfied that degenerative change is not an infrequent finding on an X-ray of a person in their mid‑50s and, despite the presence of such degeneration, it cannot be assumed to already be or to become symptomatic.  The opinion of Dr. Dommisse that the onset of Mr. Amini’s symptoms would have been present by his mid-50s was only what he referred to as “my guess”.

[35]         I accept the opinion of Dr. Fuller that the prognosis for spontaneous resolution of symptoms of Mr. Amini “… can be considered guarded, if not poor”.  I also accept his opinion that Mr. Amini has reached maximum medical recovery.  I further accept the opinion of Dr. Fuller that degenerative change evidence is a normal phenomenon of aging not related to the accident.  I find that Mr. Amini sustained a grade 2 strain of his cervical and thoracic spine and his lumbosacral spine as a result of the accident which has resulted in decreased flexion and extension, reduced rotation of the cervical spine, and reduced lateral flexion, and that these injuries have continued to cause pain and suffering and physical restrictions.

In assessing non-pecuniary damages at $70,000 for the collision’s role in the lingering symptoms Mr. Justice Burnyeat provided the following reasons:

[46]         Here, I find that there was little, although some, likelihood that Mr. Amini would have begun to experience some pain as a result of the degeneration noted in his x‑rays.  Having made that determination, I also have made the finding that the degeneration was asymptomatic by age 55 when the accident occurred, despite the fact that Mr. Amini had two strenuous, labour-intensive occupations.  While I am in general agreement with counsel for Mr. Amini that the appropriate range of awards for non-pecuniary damages would be $75,000 to $85,000, I take into account all of the factors noted above and award non-pecuniary damages in the amount of $70,000.


The “Acceptable Practice” For Taking Pre-Trial Witness Statements

June 25th, 2014

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.

In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.

The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:

[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.

[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…

[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.

[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.

[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.

[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.


Supplementary Expert Reports Bound By Document Disclosure Duties

May 1st, 2014

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the scope of document disclosure when dealing with supplementary reports.  In short the Court held the same duties apply to supplemental reports as to ‘original’ reports, namely to identify the documents relied on by the expert in forming their opinion.

In this week’s case (Amini v. Khania) the Defendant’s expert authored a supplemental report without listing all the documents relied on.  The Defendant argued the Rules for listing all documents relied on in expert reports do not apply to supplemental reports.  Mr. Justice Burnyeat disagreed and in doing so provided the following reasons:

 [18]         The submission of counsel for the Defendants is that it is not necessary in a supplementary report to include a list of every document relied upon by the expert providing a supplementary opinion.  I am satisfied that the failure of Dr. Dommisse to list the documents that he relied upon is not “cured” by the provisions of Rule 11-6(7).  While it is clear that supplementary reports have a narrow scope and purpose and are only intended to set out where and how a previous opinion has changed in a material way, there is nothing in Rule 11‑6(7) which would allow me to conclude that the filing of a supplementary report can circumvent the clear and mandatory requirements of Rule 11‑6(1)…

[21]         The very purpose of Rule 11‑6 is that all expert reports should be tendered in a way that neither side can be ambushed or surprised at trial…

[23]         A supplementary expert report remains an expert report.  It must comply with the rules set out in Rule 11‑6(1).  Otherwise, the supplementary opinion would be based on unknown facts and assumptions.  It would be impossible to give the necessary weight to a supplementary expert opinion as it would be impossible to compare the facts upon which that opinion was based with the findings of fact ultimately made by the Court.  The provision of a supplementary report which does not comply with Rule 11‑6(1) should not be used to circumvent the requirement that no party will be caught by surprise by an expert report.

 


Want Your Day In Court? Mortgage Your Property First!

February 25th, 2013

In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.

In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment   The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“:  The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs.  Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons:

[18]         I am satisfied that “very special circumstances” are present so that an order for security for costs should be made.

[19]         First, the Plaintiff has a pattern of ignoring orders for costs that have been made:  in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S.

[20]         Second, I take into account the merits of the claim of the Plaintiff.  As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M.  and J.M.  It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail.  However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred.  It is a fair assessment at this point that the case of the Plaintiff has many problems…

[25]         The Defendants request the payment into Court of the sum of $100,000.  It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court.  However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000.  The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000.

[26]         Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made.  Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia.  The mortgage is not to be discharged or enforced without the further order of the Court.

[27]         The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.


More On Discovery Evidence at Trial and The Adverse Party Limitation

January 3rd, 2013

As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.

In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages.  The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party.  In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant.  In disallowing this Mr. Justice Burnyeat provided the following reasons:

12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:

I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)

[13] The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.

[14] Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.

[15] The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants. 


$100,000 Non-Pecuniary Assessment for Triggering Early Onset of Arthritic Symptoms

August 14th, 2012

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for the triggering of arthritic symptoms in pre-existing asymptomatic degenerative joints.

In the recent case (Witt v. Vancovuer International Airport Authority) the Plaintiff was a fire-truck salesman.  Chalking this up to the ‘you learn something everyday’ category, this is apparently a lucrative career with the Plaintiff earning approximately $740,000 per year.  While at the Vancouver Airport the Plaintiff fell through metal plates “that were not secured by the long stakes that should have been used to secure the plates” creating “voids below the plates which allowed the plates to shift as vehicle traffic went over them“.  The Defendant was found fully liable for the incident.

The fall triggered symptoms of pain in the Plaintiff’s back, knee and hip.  He had pre-existing arthritis in these areas with the fall accelerating these conditions resulting in long-standing pain.  In assessing non-pecuniary damages at $100,000 Mr. Justice Burnyear provided the following reasons:

[59] Based on the conclusions reached by the medical experts, on the testimony of Mr. Witt and Ms. Witt, and on the testimony of those who knew him well, I conclude that Mr. Witt has considerable and continuing pain as a result of the Fall and that the pain that he has suffered has made his life less enjoyable.  I find that his inability to walk long distances, his inability to enjoy golfing, hiking and tennis, and his reduced sleep and energy levels have come as a result of the Fall.  I am satisfied that Mr. Witt should be compensated for that pain and suffering.

[60] Regarding the particular complaints of Mr. Witt, I make the following findings.  I find that Mr. Witt now suffers from chronic pain as a result of the Fall.  I also find that, as a result of the chronic pain, there have been negative changes to his disposition, a considerable reduction in his physical activity and capacity, and a significant negative effect on his marriage.

[61] Regarding the back pain experienced by Mr. Witt, I find that some but not all of the back pain experienced by Mr. Witt as a result of the Fall settled by the summer of 2010.  However, I also find that he is now more susceptible to develop spinal stenosis as a result of the Fall.

[62] Regarding the right hip of Mr. Witt, I find that he continues to have severe pain from time to time and discomfort when sitting.  As a result of the Fall, I find that osteoarthritis has become systematic and that this has become the case earlier than what would have occurred but for the Fall.  While I find that there was a degree of degenerative spondylosis and arthritis prior to the Fall, I find that the Fall produced severe pain in the right hip that would not have been experienced by Mr. Witt but for the Fall and which has produced early onset of degenerative spondylosis and arthritis.

[63] As a result of the Fall, I find that the pain and weakness being experienced by Mr. Witt in his right knee has accelerated the existing degenerative arthritis so that Mr. Witt now requires surgery.  I find that the presence of degenerative arthritis in the right knee of Mr. Witt was accelerated by the Fall…

[68] Taking into account the injuries caused by the negligence of the Defendants, the duration of the pain and suffering produced by the negligence, the likely future pain and suffering caused by the Fall, and by the early onset of arthritic problems caused by the Fall, I set the non-pecuniary damages available to Mr. Witt at $100,000.00.

The Court went on to note that the ongoing injuries and expected medical interventions will interfere with the Plaintiff’s career and assessed damages for diminished-earning capacity at $600,000.