ICBC Law

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of pre-existing fibromyalgia.

In this week’s case (Paradis v. Gill) the Plaintiff was injured in a 2007 collision.  Fault was admitted.  Despite expressing some “reservations in accepting the entirety of the evidence put forth in the plaintiff’s case” Mr. Justice Masuhara accepted that the collision caused an aggravation of pre-existing fibromyalgia which was on-going by the time of trial.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[73] Applying the principles of causation as set out in Resurfice Corp. v. Hanke, 2007 SCC 7, [2007] 1 S.C.R. 333; Athey v. Leonati, [1996] 3 S.C.R. 458; and most recently in Farrant v. Laktin, 2011 BCCA 336, as well as recognizing the comment that courts should exercise caution when there is little objective evidence of continuing complaints of pain persisting beyond what the defence asserts is the normal recovery period, I find that the Accident aggravated Ms. Paradis’ condition of fibromyalgia.  My view is that Ms. Paradis’ pain is predominantly in the mild to moderate range (though it can increase) and relates to her lower back; that she suffered from back and neck pain as well as headaches prior to the Accident but not as great; that she is able to stand far longer than she says; that she has the capacity to lift more than she asserts; and can engage in more activities than the physical capacity concludes.  The plaintiff also has full range of motion at her neck, shoulders, elbows, forearms, wrists, lower back, hips, knees, ankles and feet.  A significant part of her physical restrictions are not substantially related to aggravation from the Accident but rather to the unrepaired injury to her left knee, the osteoarthritis found in her knees, as well as her weight.  However, I find that she has suffered some loss of capacity…

[83] Ms. Paradis had a history of back, neck and knee pain, and headaches prior to the Accident.  Also, the medical evidence indicates that Ms. Paradis has full range of motion in all areas of her body, from her neck to her feet.

[84] The authorities referred to by the plaintiff in support of its position on quantum largely do not deal with persons with a pre-existing condition of pain comparable to the plaintiff.  The cases also deal with persons who enjoyed activities that were more significantly impacted by their injuries than in the instant case.  In my view, the injuries in the cases submitted by the defendant are somewhat more comparable to the plaintiff.  Also, I accept that Ms. Paradis’ level of pain and disability can be significantly controlled with proper management.  The defence’s position that some recognition for the plaintiff not taking reasonable steps to reduce her weight is addressed later under mitigation.

[85] In all of the circumstances, I assess general damages as $40,000.

This case also appears to be one of the first cases to be prosecuted under the Fast Track with damages exceeding the soft cap.  Despite the cap set out in Rule 15-1(1)(a), Rule 15-1(3) states that “nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of  $100,000“.  This week’s case was apparently prosecuted under the fast track (as is evidenced by the Court’s costs award set out in paragraph 119) and had global damages of $116,238 assessed.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.

In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee.  Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.

The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain).  The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.

The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“.  Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000.  In reaching this assessment Mr. Justice Masuhara provided the following reasons:

[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….

[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …

[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.”  Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…

[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.

Reasons for judgement were released today addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for 2 plaintiffs who suffered soft tissue injuries in a 2006 BC car crash.  I summarize the Court’s key findings in my continued effort to grow this public data base of damage awards in BC injury claims

In today’s case (Morrison v. Peng) the Plaintiffs (husband and wife) were rear-ended by a vehicle driven by the Defendant.  Fault was admitted leaving the Court to value the Plaintiffs’ injury claims.  Both suffered soft tissue injuries which lasted approximately one year.  In assessing the Plaintiffs non-pecuniary damages at $9,000 and $18,000 respectively Mr. Justice Masuhara summarized the injuries as follows:

[23] Having considered the evidence, I am of the view that Mr. Morrison suffered soft tissue injuries to his neck and back which can be characterized as mild, and that his symptoms resolved within a year.  Given my assessment of Mr. Morrison and the facts, my view is that he was able to do more than what he stated…

[26] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $9,000.

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[42] Ms. Jabs’ condition is somewhat complicated by the several conditions that she has identified in the report.  Based on the foregoing medical opinion, I find that that she suffered soft tissue injuries to her neck, upper and lower back and that the symptoms she experienced resulting from the accident had a duration somewhat beyond one year of the accident.  Her chiropractic and massage treatments end at this point for about one year.  I would characterize her injuries as mild to moderate in severity. ..

[46] Recognizing that the aforementioned cases are for guidance and that each case is to be determined on its own unique circumstances, I find a fair and reasonable non-pecuniary award to be $18,000.

Feel free to visit the soft-tissue injury archives of this site to review other BC cases addressing non-pecuniary damages for soft tissue injuries.

One pattern that is becoming well developed under Rule 37B (the Rule dealing with Formal Settlement Offers in BC Supreme Court Lawsuits) is that of timing.  Caselaw seems to require that formal offers need to be available for acceptance for a reasonable period of time before triggering cost consequences under Rule 37B.  Reasons for judgement were released this week demonstrating this.

In this week’s case (Dodge v. Shaw Cablesystems [SBC) Ltd.) the Plaintiff sued for damages as a result of a slip and fall.  As a result of the fall the Plaintiff injured her knee.  Before trial the Defendant made a formal offer for $50,000 on an “all-in” basis (meaning inclusive of all damages, costs and disbursements).  This offer was made two working days before the start of trial.

After trial, the Jury decided that the Plaintiff and the Defendant were equally at fault for the fall an awarded a net sum of $20,000 for her injuries.  The Defendant then brought a motion for costs under Rule 37B.  Mr. Justice Masuhara refused to award the Defendant any costs because the offer was not left open for consideration for a reasonable period of time.  In coming to this conclusion Mr. Justice Masuhara stated as follows with respect to timing of formal offers under Rule 37B:

I conclude that the defendant’s offer was in effect from Wednesday, January 7, 2009 to Friday, January 9, 2009.

[14] A party requires a reasonable time within which to consider an offer and decide in the circumstances existing at the time of the offer whether it should be accepted or rejected:Coquitlam (City) v. Crawford, 2008 BCSC 1507. There is case law on Rule 37B that suggests that a reasonable amount of time to consider an offer is seven days. In Arnold, Butler J. cited Bailey when he stated at para. 22 that “[a] reasonable period of time to consider an offer to settle is seven days”. In Towson v. Bergman, 2009 BCSC 978 at para. 70, Gray J. stated that the seven day period “has been applied in the case law.” I do not, however, read these cases as laying down a rule of general application. In Wright v. Hohenacker, 2009 BCSC 996, for example, Fisher J. did not consider a “seven day rule” when determining whether an offer should have been reasonably accepted, stating that, in the circumstances of that case, the fact that the offer was made only four days before trial was not particularly significant. Suffice it to say that every case must be judged on its own facts. Imposition of an inflexible rule as to what is considered a reasonable amount of time risks returning to the rigid consequences of the old Rule 37 and fettering the wide discretion intended under Rule 37B.

[15] In this case, the plaintiff was only given two days to consider accepting the offer before it expired. Apart from pointing out that the offer was made after mediation and after delivery of the defendant’s expert reports, neither party has led any evidence surrounding the circumstances at the time the offer was made. It is known, however, that the plaintiff was a resident of Ontario at the time, whereas her counsel was resident in Abbotsford. While this alone is not determinative (the plaintiff has not led any evidence of her whereabouts at the time of the offer), when an offer to settle is received, counsel and client are required to make a careful appraisal of the merits, taking into account complex and subjective factors in appraising the eventual outcome of a trial, in this case, a jury trial. Complexity is increased where the plaintiff is asked to evaluate an “all-in” offer where, by the very nature of the offer, the actual amount offered in discharge of the action is not immediately apparent.

[16] Taking into account that analysing the “all-in offer” would have required breaking out the appropriate cost consequences, and that plaintiff and counsel undoubtedly had many other things that required their attention, two days was an unreasonable amount of time in which to properly analyze the offer. Even if the offer did beat the result, counsel for the plaintiff did not have enough time to reach this conclusion within the deadline set by the defendant…

[18] Since I have decided that it was unreasonable for the defendant to expect that the plaintiff would accept the offer within two days, the policy underlying Rule 37B, which is to encourage the settlement of disputes by rewarding the party who makes a reasonable offer and penalizing the party who declines to accept such an offer, is not engaged. Accordingly, as permitted by Rule 37B(4), I decline to consider the defendant’s offer to settle in exercising my discretion relating to costs.

Another interesting point in this decision was the Court’s discussion of “all-inclusive” offers under Rule 37B.  Under the now repealed Rule 37 such offers were not allowed and could not trigger costs consequences.  Mr. Justice Masuhara ruled that such a strict prohibition is not warranted under Rule 37B but parties should make such “all-in” offers at their own peril, Specifically the Court stated as follows:

24] Since the introduction of Rule 37B, there is no longer a complete code to dictate the cost consequences of an offer to settle. Rule 37B contemplates a summary procedure to determine costs. It offers broad discretion to the trial judge to determine cost consequences of a failure to settle. While the defendant is no longer automatically entitled to costs from the date of the offer if the offer is more favourable than the judgment, Rule 37B(5)(d) still states that the court may in such a case “award to the defendant the defendant’s costs in respect of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.” While I accept that the consequences of an uncertainty in the calculation of costs up to the date of the offer to settle are no longer as stringent, as under the old Rules, the court is still faced with difficulty in summarily determining the relationship between the offer and the costs in an “all-in” offer. Consequently, the potential for injustice still exists. Thus, under Rule 37B, it does not appear to me that the rationale for the rule in Helm is no longer of assistance. In my view the language of Rule 37B is broad and assumes that the trial judge in every case is in the best position to determine whether an “all-in” offer can be considered. Provided that the proper form of an offer to settle is adhered to, the court has under Rule 37B the discretion to take into account that offer to settle. Nonetheless, defendants who make an “all-in” offer do so at their own peril.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  To this end  it is worth pointing out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.

In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.

Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.‑L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.