ICBC Law

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Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries caused by a motor vehicle collision.

In last week’s case (Ng v. Sarkaria) the Plaintiff was injured in a 2007 collision.  The Defendant admitted fault for the crash.  The 31 year old Plaintiff suffered “a large focal disc protrusion at L4-5 and a less significant protrusion at L5-S1“.  As a result the Plaintiff went on to have a partial discectomy.

In assessing non-pecuniary damages at $95,000 Mr. Justice Butler provided the following reasons:

[43] In summary, Mr. Ng has been left with a limitation in the amount of activities he can do.  He has also suffered some restriction in the nature of the activities he can do because he is focused on staying healthy.  He is determined to continue his work as a TFR.  He is not disabled by pain and there is no suggestion that he suffers from chronic pain.  Rather, he has episodic pain when he overexerts himself…

[46] I have found the decisions referred to by the plaintiff to be helpful to my decision.  Of course, each assessment depends on the unique facts of the case.  Here, Mr. Ng’s injury was significant; however, he has had a very positive result from the surgery.  He continues to be able to do all of the activities of his job.  His income has increased to a level greater than it was before the accident.  He must be careful to avoid excessive stress on his back and must carefully balance his work and home life.  However, when I compare his situation to that of the plaintiffs in the cases he relies upon, he is in a better position because he does not experience ongoing chronic pain and is able to continue to carry out most of the activities he could before the accident.  However, I must also take into account the possibility that he will not be able to continue to perform at his current level as a result of the injuries suffered in the accident.  There is a possibility that his pain and restriction of activities will increase in the future.

[47] When I take all of these factors into account, I conclude that the appropriate award for non-pecuniary damages is $95,000.

Prior to reaching this decision the Court heard from competing medical evidence about the connection between the collision to the disc protrusions.  The physician retained by the defence (Dr. Dommisse) provided evidence minimizing this connection arguing the injury was perhaps more likely connected to a work related incident.  In rejecting this opinion Mr. Justice Butler provided the following criticism:

[30] The defence was critical of Dr. Aitken’s alleged failure to fully inquire into the work activities undertaken by Mr. Ng after he went back to work.  However, I am of the view that it is Dr. Dommisse who can be criticized for failing to back up his opinion by pointing to evidence that would connect the Herniations to a particular injury or incident at work.  All of the doctors were aware in general terms of the nature of Mr. Ng’s work.  They all agreed that it is possible for such work to cause a tortional injury to the spine.  However, there was no evidence that Mr. Ng suffered such an injury or insult at work between June 2008 and November 2008.  Indeed, he deliberately avoided the more onerous work tasks including those jobs requiring the use of the large ladder.  He does not recall using the ladder in that timeframe.  During much of that period he was off work, on light duties or avoiding heavy tasks.  The evidence established that there was only one significant injury or insult to Mr. Ng’s spine:  the injury that was suffered in the accident.

As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:

[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

This principle becomes particularly important with respect to civil sexual abuse claims.  The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them.  If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators.  This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.

In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather.  The abuse was “egregious and prolonged“.  Later she was the victim of sexual abuse at work.  The latter abuse was of a less severe character.  She sued for damages as a result of the workplace abuse.  The Defendant was ultimately found liable.

The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“.  Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis.  In doing so the Court provided the following reasons:

[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults.  Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial.  There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults.  In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.

[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.

[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a fairly simple idea.  It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”.  In other words, she was fragile and susceptible to suffering emotional damage.  There is no question that this condition falls within the “crumbling skull” category.  Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw.  They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The evidence of Ms. Corfield’s mother provides some support for this position.  Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse.  I take this to mean that she was doing reasonably well but had not fully recovered.  In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004.  This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties.  She also admitted to continuing intimacy problems arising from the Childhood Abuse…

[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000.  This must be reduced to take into account Ms. Corfield’s pre-existing condition.  A deduction of 15% results in an assessment of $59,500.  I will round that up and award the sum of $60,000 for non-pecuniary damages.

The Rules of Court permit parties to a lawsuit to force opposing parties to take the stand during the course of a lawsuit.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this power under the New BC Supreme Court Civil Rules.

In today’s case (Dawson v. Tolko) the Plaintiffs were current and former employees of Tolko Industries.   Tolko Industries amended a pension plan it offered it’s employees.  During the course of this occurring another Defendant in the lawsuit, Mr. Mercier, assisted and advised Tolko Industries on issues relating to the offer made to the employees to change from a defined benefit pension plan to a defined contribution plan.

The Plaintiff’s sued Tolko and Mercier alleging that they did not act in good faith during this period.  Prior to trial the Plaintiffs lawyer examined Mr. Mercier extensively.  During the course of the trial the Plaintiffs wished to put Mr. Mercier on the stand.

The Defendant objected arguing that this was not necessary as he would take the stand in the defence and could be cross-examined at that time and further that the Plaintiff could read his discovery evidence in at trial.

Mr. Justice Butler rejected the Defendant’s argument and ordered that he take the stand.  In doing so the Court canvassed the power of litigants to put adverse parties on the stand in the BC Supreme Court.  In doing so the Court found that authorities developed under the former Rules remain helpful.  Specifically Mr. Justice Butler held as follows:

[6]             The Rules provide that the plaintiff may call an adverse party as a witness for cross-examination as part of the plaintiff’s case.  This may be done either by delivering the notice (as was done in this case), issuing a subpoena, or calling the adverse party as a witness if he or she is in the courtroom.

[7]             In my decision in Canadian Bedding Company Ltd. v. Western Sleep Products Ltd., 2008 BCSC 1444, I considered an application to set aside a notice delivered under the provisions in the former Rules in circumstances that were very similar to the circumstances in this case.  I dismissed the defendant’s application to set aside the notice.  In doing so, I examined the three different ways in which an adverse party could be called as a witness in the plaintiff’s case and the differences in the provisions for setting aside the notice or subpoena.  The provisions in the current Rules are, with one exception, the same and so my analysis is relevant to the current Rules…

[16]         I agree that the natural unfolding of the narrative can be impacted by use of the adverse party witness rule and that the use of the rule may unnecessarily prolong the trial.  However, I do not agree that the adverse party witness rule was intended to be limited to situations where the evidence sought to be elicited cannot be satisfactorily tendered in any other way.  The use of an adverse party witness may, in certain circumstances, be an effective way to prove a party’s case.  Counsel should not be deprived of that option when the language in the adverse party witness rule does not contain that limitation.

[17]         I have arrived at this conclusion on the basis of my analysis of the former Rules set out in Canadian Bedding.  In my view, the differences in the discretion given to a trial judge depending on how the adverse party witness is called to be a witness are important and cannot be ignored.

[18]         The Rules establish a hierarchy of discretionary considerations depending on how the adverse party witness is compelled to testify.  When a notice has been properly served pursuant to Rule 12-5(21), the witness and counsel have ample time to prepare for the cross-examination and design a trial strategy to deal with the fact that the defendant will be an adverse party witness.  Accordingly, the court is given a limited jurisdiction to set aside the notice.  It is only where the “evidence of the person is unnecessary” that the court can set aside the notice.  I cannot read Rule 12-5(23)(b) as equivalent to Rule 12-5(39), which states that a subpoena may be set aside where “compliance with it is unnecessary.”  The wording of Rule 12-5(39) must encompass a broader range of considerations including a consideration of the steps already taken in the case and whether compliance with the subpoena is necessary for the proper conduct of the trial.

[19]         Further, as I noted in Canadian Bedding, the discretion granted to the court must be exercised with restraint.  In De Sousa v. Kuntz (1988), 24 B.C.L.R. (2d) 206 (C.A.), Wallace J.A. cautioned that it was only in a clear case that a judge should exercise his discretion to set aside a subpoena on the ground of necessity.  He emphasized, at 214, the need for a judge to be acutely aware that if he sets aside a subpoena:

… he is substituting his view for that of counsel as to the need to subpoena a certain witness and that he will seldom have as complete an appreciation as counsel does of the benefits – both tactical and substantive – that a litigant may derive from calling a certain witness.

That caution applies with equal force in relation to the adverse party witness rules.  If plaintiff’s counsel decides to utilize the adverse party witness rule in order to satisfy the onus of proof borne by the plaintiff, the court should be reluctant to interfere.

[20]         In arriving at his conclusion in Strother, I also note that Lowry J.A. specifically stated at para. 43 that he intended “no imposition of any procedural limitation.”  If I were to accede to Mr. Mercier’s interpretation of the adverse party witness rule, it would add a gloss that does not appear in the current Rules.  It would impose a procedural limitation which does not appear in the adverse party witness rule.

[21]         Mr. Mercier cannot show that his evidence is “unnecessary”.  Mr. Poulus’s undertaking to call him as a witness and the fact of the extensive examination for discovery is not relevant to that consideration.  Accordingly, I decline to set aside the notice pursuant to Rule 12-5(23)(b).

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry awarding a Plaintiff damages for injuries sustained in two BC motor vehicle collisions.

In today’s case (MacIntyre v. Pitt Meadows Secondary School) the Plaintiff was involved in a total of three seperate accidents and sued.  All three trials were heard together.  His claim for the first accident (a claim against his school for being injured while in shop class) was dismissed.  This left the court to deal with the Plaintiff’s motor vehicle accident claims.

The first motor vehicle collision happened in 2003.  The Plaintiff was 15 at the time.  He was struck by a vehicle at low speed on his right leg while he was walking in a crosswalk.  The issue of fault was admitted.  The Plaintiff suffered a knee injury and eventually had arthroscopic surgery.  Mr. Justice Butler awarded the Plaintiff $35,000 for his non-pecuniary damages as a result of this injury.  In arriving at this figure the Court highlighted the following facts:

86] There is no question that Evan’s right knee suffered a significant blow in the Second Accident.  He suffered discomfort and a restriction in his activities.  In the first three weeks after the Second Accident, Evan missed six full days of school.  He found it difficult to crouch or kneel and felt that the knee was unstable.  He was not able to carry out his part-time job as a football referee.  He used crutches for a month or two and then used a cane.  He found it difficult to use the crutches because this caused additional pain in his right wrist.  His parents rented a wheelchair for him to use at home.  He was unable to take part in part-time work over the Christmas holidays…

[100] There is no controversy between the expert orthopaedic surgeons regarding the nature of the injury and the current condition of Evan’s right knee.  The structural injury was mild.  If there was damage to the ACL, it was not significant and healed quickly.  As of the date of the arthroscopic investigation, the knee compartment exhibited no abnormalities as a result of the injury.  All of the doctors accept that there was a severe strain to the right knee.  The impact of the injury was likely worse than it would have been for most people because of the pre-existing laxity in Evan’s knee joint.

[101] The experts also agree that Evan should have been symptom free sometime after June 2006.  However, as Dr. McCormack notes, there is a small subset of individuals who continue to experience residual symptoms.  The question that remains is whether Evan falls within that small subset.  If I can accept Evan’s subjective complaints of continuing pain and limitation of movement, I can conclude that he falls within that small subset in that his condition has reached a plateau.  This question raises the issue of Evan’s credibility….

I have concluded that I cannot accept his evidence regarding the continuing symptoms that he says he has experienced and is currently experiencing as a result of the three accidents.  There are simply too many inconsistencies in his case to accept his assertions at face value…

[105] In summary, I find that Evan suffered a severe strain to his right knee as a result of the Second Accident.  There is no lasting damage to his knee compartment or the knee structure. There is no possibility of future problems with the knee as a result of the Second Accident.  I also find that Evan’s knee symptoms persisted longer than they would have normally because of the laxity in his knee joints.  I accept Dr. McCormack’s evidence that normally after a couple of months of therapy following arthroscopy patients are able to return to their pre-injury status.  In the circumstances of this case, I conclude that Evan’s knee functioned well within three or four months after the arthroscopy, although some activities continued to cause him pain or discomfort.  Specifically, I find that the symptoms persisted for four or five years…

[111] Taking into account the incapacity Evan suffered after the initial injury and after the surgery, the aggravated injury to his right wrist, and the persistence of the symptoms for four to five years, I fix non-pecuniary damages at $35,000.

The second accident was a rear-end car crash.  Fault was admitted.   The Court had some problems with the Plaintiff’s credibility but ultimately did find that the crash caused a compensable injury.  In assessing the Plaintiff’s non-pecuniary damages at $22,500 for this crash Mister Justice Butler found as follows:

[132] On the basis of all of the evidence, I conclude that the Third Accident resulted in a soft tissue injury to the cervical and lumbar regions of Evan’s spine.  In general, I accept Dr. Hill’s opinion evidence regarding the nature and extent of the injury Evan suffered.  While I do not accept Evan’s complaints of ongoing pain, I find that his symptoms persisted somewhat longer than predicted by Dr. Hill.  Given the level of physical activity Evan was able to maintain in the years following the accident, I conclude that the impairment to his work and leisure activities was not significant.  By the date of the trial, approximately two years after the Third Accident, the injuries were substantially healed…

[135] Given my findings, the cases referred to by the plaintiff are of little assistance.  In light of my finding that Evan’s symptoms persisted for two years, the only case referred to by the defendants that has some similarity to the present case is Levasseur.  Of course, in addition to the soft tissue injuries, Evan also suffered from disruption to his vision, which resulted in the strabismus operation.  In all of the circumstances of this case, I assess non-pecuniary damages at $22,500.

In addition to the Court’s discussion of pain and suffering awards this decision is worth reviewing for the extensive reasons given with respect to credibility.  In a tort claim involving soft tissue injuries Plaintiff credibility plays a key role.  Here the Court made some unfavourable findings with respect to some of the Plaintiff’s evidence.   Some of the evidence that influenced the Court’s findings were “facebook photographs…(showing the Plaintiff) performing many other activities without apparent difficulty.” and video showing the Plaintiff “winning the limbo contest with an impressive limbo move“.  This case is worth a read to see the damaging impact photographic / video evidence can in BC injury litigation.