ICBC Law

Reasons for judgement were published today on the BC Supreme Court website dealing with the scope of permissible neuropsychological opinion evidence in BC Brain Injury Cases.

When ICBC or other BC brain injury cases go to trial a neuropsychologist is a common type of expert witness called by both Plaintiff and Defence Lawyers.  Neuropsychologists are extensively trained with respect to the cognitive and behavioural consequences of brain injuries and for this reason their evidence is often vital in the prosecution of brain injury claims.

In today’s case (Meghji v. Lee) the Plaintiff alleged she suffered a traumatic brain injury.  In support of her case the Plaintiff sought to have a neuropsychologist give opinion evidence with respect to the cognitive and behavioural sequelae of brain injuries and also with respect to whether the Plaintiff suffered from organic tissue to her brain.  The Defence lawyer objected claiming the latter opinion is outside of the scope of a neuropsycholgists permissible expert opinion.  Mr. Justice Johnston agreed with the defence objection and summarized and applied the law as follows:

[27] Counsel for the plaintiff wants Dr. Malcolm to be permitted to give an opinion on whether Ms. Meghji has had an injury to her brain. I looked briefly at Dr. Malcolm’s written reports, and in his first report, the one of February 1, 2007, Dr. Malcolm provides an overview of the place of psychometric testing in his overall task in this way. He says:

Once the test results are determined to reflect the person’s neuropsychological status with acceptable accuracy, the question remains as to whether clinically significant test results reflect organic damage, or stem from other factors, such as psychological causes. The neuropsychological process considers all of these possibilities in reaching diagnostic conclusions. The conclusions reached are based on a balance of probability, the strength of which is indicated where possible.

[28] At the risk of appearing to be overly semantic about this analysis, I take it that what counsel want Dr. Malcolm to be able to do is to testify by way of opinion about whether or not there has been some form of harm or damage to the tissues of the brain of Ms. Meghji as opposed to some form of harm or damage to the mind or emotions or personality of Ms. Meghji. Whether there is a distinction between the brain as an organ of the body, on the one hand, and the mind and personality of the person in whose body the brain is found, on the other, is a metaphysical question that I hope I never have to answer in a court of law. I am going to confine myself to what I think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological and whether they permit him to provide the ready-made inference through opinion on whether there has been physical harm or damage to the brain as an organ of the body, and in my view, they do not.

[29] The statutory regime does not, in my view, go any further than to allow testing, assessment, diagnosis of, and therefore opinions on the abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or mental disorders, that is, disorders of the mind. These conditions may arise with or without damage to the structure or tissues of the brain. They may be associated with or flow from injury or damage to the brain itself. They may arise from or flow from other causes. It does not necessarily follow that because Dr. Malcolm is permitted by statute to test, assess, or diagnose behavioural, emotional, or mental disorder that he must therefore be permitted to give in evidence his opinion that the cause of any of these conditions stems from an injury to the tissues or structures of the brain.

[30] In my view, Dr. Malcolm’s qualifications do not go so far as to permit that opinion.

[31] That does not say that Dr. Malcolm cannot give, in evidence, his opinion based upon the results of his testing, nor does it prevent Dr. Malcolm from giving an opinion on whether the test results as evaluated by him are of a nature, kind, or quality seen in people who have been diagnosed as having had organic brain injuries.

[32] In my view, the distinction drawn by Mr. Justice Clancy in Knight remains appropriate, and that is, Dr. Malcolm is qualified to give his opinion on the cognitive and behavioural sequelae of brain injuries and to indicate the relative likelihood of any cognitive and behavioural abnormalities being the consequence of a traumatic brain injury, but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm, to diagnose physical injury and the manner in which it was incurred.

[33] It therefore follows that Dr. Malcolm will not be permitted to give his opinion on whether Ms. Meghji has had an injury to the tissues of her brain or, obviously, as to the cause of any such injury, but he will be permitted to testify as I have indicated.

When a person is injured through the fault of another in British Columbia and suffers a past wage loss from an “under the table” job can that past wage loss be recovered in a personal injury action? The answer is yes, however, it is much more difficult to do so than in cases where past income is accurately reported to Revenue Canada.

In a 1992 case from the BC Court of Appeal (Iannone v. Hoogenraad) the law was summarized as follows:

This plaintiff, like others in similar circumstances, had the burden of leading evidence of past accident wages losses.  That will be a difficult burden to discharge where there is no corroborating evidence such as income tax returns, but it is not an impossible burden to discharge.  Here the trial judge was satisfied on the evidence that the injuries sustained by the plaintiff prevented him from earning income which he would otherwise have earned.  The burden of proof was therefore discharged.  The loss was proven.  It is not, in my opinion, open to the defendant to avoid compensating for that loss on the ground that unreported income was taken into account in computing it.

Reasons for judgment were released today by the BC Supreme Court demonstrating the difficulty in succeeding in a past wage loss claim in these circumstances.

In today’s case (King v. Horth) the Plaintiff was injured in a 2006 Car Crash in Saanich, BC (greater Victoria).  The Plaintiff claimed damages for various losses including past loss of income.  At trial he asserted that “he would have been capable of earning greater income as a gardener had he not been injured in this accident”. This claim was largely rejected and paragraphs 25-26 of the decision demonstrate Mr. Justice Johnston’s skepticism of this claim for lost income where pre accident income was not reported to Revenue Canada:

[25]      A second concern respecting Mr. King’s credibility relates to his claim for loss of earning capacity arising out of this accident. This claim centers around his assertion that he would have been capable of earning greater income as a gardener had he not been injured in this accident. Prior to this accident the plaintiff did not record, in any fashion, the income he claims that he earned as a gardener, nor did he declare that income on his income tax returns. There is some evidence from a former employer that he had employed Mr. King as a gardener before the accident, however, that employer kept no record of the plaintiff’s work hours or his wages.

[26]      In a document he submitted to ICBC in February 2006, the plaintiff stated his occupation as a surveyor. He did not mention any work as a gardener. Mr. King testified that he felt it was advisable not to refer to his gardening income in his dealings with ICBC, at least in the beginning, because that income had been earned “under the table.”

In addition to making it more difficult to succeed in a past wage loss claim, a further dilemma that can arise in these types of cases are problems with Revenue Canada after trial.  Whether or not a past income award is made at trial, Revenue Canada can come after a Plaintiff for back taxes when these types of cases are advanced.

The reason for this is, to discharge the burden of proof, a Plaintiff usually needs to take the stand and testify under oath as to how much money he/she earned historically but failed to report to Revenue Canada.  Trial testimony is generally a public record and Revenue Canada can use this sworn evidence to come after Plaintiffs.  So, in summary, pay your taxes!