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 Pearlman’

$110,000 Non Pecuniary Assessment For Chronic Pain and Major Depressive Disorder

April 3rd, 2017

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries sustained in three separate collisions.

In today’s case (Parhar v. Clarke) the Plaintiff was injured in three collisions that the Defendants accepted blame for.  She suffered chronic physical and psychological injuries as a result including thoracic outlet syndrome, chronic pain,  major depression and anxiety.  Her prognosis for further improvement was guarded.  In assessing non-pecuniary damages at $110,000 Mr. Justice Pearlman provided the following reasons:

[215]     Ms. Parhar was 27 years old at the time of the first accident and 35 at the time of trial.

[216]     The injuries she suffered in the accidents include injuries to the muscles of her neck, shoulder girdle and back with attendant muscle spasm, low back pain, thoracic outlet syndrome, persistent headaches, TMJ pain and dysfunction and soft tissue injuries to her knees and right hip.

[217]     In addition, as a result of the defendants’ negligence, the plaintiff sustained a chronic pain disorder, a major depressive disorder, a generalized anxiety disorder and PTSD.

[218]     Although there has been some improvement in the plaintiff’s condition, Ms. Parhar’s prognosis is guarded in light of the persistence of her symptoms of pain and her psychological conditions.

[219]     Further psychological counselling would assist Ms. Parhar in coping with chronic pain and managing the functions of daily living. Exercise and conditioning will probably produce further improvements to her symptoms of neck, shoulder and back pain, and may also alleviate her headaches. However, after eight years of chronic pain, it is unlikely the plaintiff will make a full recovery and probable that she will experience flares of her back and neck pain, anxiety and depressive moods indefinitely.

[227]     Taking into account the Stapley v. Hejslet factors, all of the authorities cited by counsel, the risk that the plaintiff would have suffered a recurrence of depression in any event of the accidents, and all of Ms. Parhar’s particular circumstances, I would assess her damages for pain and suffering and loss of amenities and enjoyment of life in the amount of $110,000…


ICBC’s “Checkered Record” of Funding Treatments Impacts Part 7 Deduction Request

November 21st, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.

In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs.  The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.

Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments.  In doing so the Court provided the following reasons.

[71]         The onus of showing that a deduction should be made is on the defendant.  I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid.  Any such uncertainty must be resolved in favour of the plaintiff.

[72]         Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.

[73]         In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.

[74]         Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition.  Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.

[75]         The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.

[76]         The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.  

[77]         I disagree.  The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson.  Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

[78]         The deductions from the award of costs of future care for Part 7 benefits total $4000.


$67,500 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries With Depression

August 4th, 2015

Reasons for judgement were released today assessing damages for chronic soft tissue injuries with secondary depression following a collision.

In today’s case (Dhanji v. Holland) the Plaintiff pedestrian was struck in a marked cross walk by a vehicle driven by the Defendant.  The Defendant admitted fault for the collision.

The Plaintiff suffered a variety of soft tissue injuries, some of which were chronic in nature and developed depression secondary to this.  In assessing non-pecuniary damages at $67,500 (a figure which was arrived at following a 10% deduction in damages for the Plaintiff’s failure to mitigate damages by refusing to attend recommended counselling) Mr. Justice Pearlman provided the following reasons:

[108]     The plaintiff is 39 years old.  As a result of the soft tissue injuries she sustained in the accident, Ms. Dhanji has experienced constant back pain, usually of mild to moderate intensity, but at times severe.  While her low back pain had substantially resolved within 14 months of the accident, she continues to suffer from neck pain, which at times is severe.  According to Dr. O’Connor, whose opinion I accept, the plaintiff will probably experience mild to occasionally moderate mid back pain indefinitely.  If she is able to maintain an active exercise regime, and improve her mood through the treatment of her depression, she may realize some reduction in pain.  There is however a very real chance that if her mood and conditioning do not improve, her pain may persist in the moderate to occasionally severe range.  It is more probable than not that Ms. Dhanji will have to cope with mild to occasionally moderate chronic mid back pain throughout her life.

[109]      As a result of her chronic pain, the plaintiff has experienced persistent mild to moderate depression since the accident.  With the benefit of psychological counselling there will likely be some improvement in the plaintiff’s mood, and her ability to manage her pain.  However, given the persistence of her symptoms of depression over the past three and a half years, there is a real possibility that she will experience intermittent bouts of depression or low mood indefinitely.  

[110]     The pain and discomfort the plaintiff experiences during prolonged periods of sitting required her to undertake a graduated return to work over a six-month period. Ms. Dhanji is capable of working full-time with the accommodations available to her at the forensic lab.  Through the use of an ergonomic chair, the application of heat, and taking short breaks during long periods of sitting, she is able to manage the pain and discomfort she experiences during the workday. However, by the end of the week she is fatigued and requires the weekends to recover.  Ms. Dhanji is resilient and dedicated to her work.  However, the pain and discomfort she experiences during the work day have diminished her enjoyment of her work.

[111]     While the plaintiff’s contact with some of her friends has reduced as a result of changes in their lives, I find Ms. Dhanji’s chronic mid back and neck pain has also impaired her social life.  As a result of her fatigue, she tends to stay at home more on the weekends.  Her friends, Ms. Woodall, Ms. Hutchinson and Ms. Ostenall all corroborated Ms. Dhanji’s evidence that she has been less outgoing since the accident.  Although she continues to host dinners from time to time, and to travel with her friends, she does so at a diminished level.

[112]     With respect to physical activities, she is capable of exercising but her tolerance for repetitive activities involving the use of her shoulders and arms is reduced.  Her recreational activities are restricted.  Ms. Dhanji no longer hikes.  She found that activity aggravated her back pain…

[124]     Taking into account the plaintiff’s particular circumstances; all of the Stapley factors, including the probability that the plaintiff will live with chronic mid back pain indefinitely; my finding that her depression is largely but not entirely caused by the defendant’s negligence; and after considering all of the authorities cited by counsel, I assess the plaintiff’s damages for pain and suffering and loss of enjoyment of life in the amount of $75,000.  I reduce that amount by 10% for the plaintiff’s failure to mitigate and award Ms. Dhanji non-pecuniary damages of $67,500.


ICBC Rate Hike Letter to PolicyHolders Does Not Taint Injury Claim Jury Pool

July 14th, 2014

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing whether ICBC should lose the right to trial by jury due to a letter they sent their policy holders blaming increased insurance rates on ‘rising injury costs’.

In today’s case (Yates v. Lee) the Plaintiff was injured in a 1998 collision.   He was 6 years old at the time.  His matter was set for trial in February, 2015 and ICBC, the insurer for the Defendant, elected to proceed via jury trial.  The Plaintiff argued that the Court should use its inherent jurisdiction to strip ICBC of their right to jury trial suggesting that the letter ICBC sent their policy holders “has tainted the jury pool by creating a real potential for bias against plaintiffs among jurors who are policy holders“.  Mr. Justice Pearlman disagreed finding there was no reason for the Court to use its inherent jurisdiction and the trial judge could deal with any suggestion of bias.  In reaching this decision the Court provided the following reasons:

[12]         Shortly after November 1, 2013, ICBC began including in the insurance renewal notices sent to each of its policy holders the following statement:

          ICBC Rate Changes:

Rising injury costs mean we’re asking the British Columbia Utilities Commission (BCUC) for 4.9% increase to Basic insurance rates. The BCUC has approved an interim rate increase of 4.9% effective November 1, 2013 and will make a final decision after a public hearing process. If a final approved rate differs from the interim rate, your Basic premiums will be adjusted for the difference, subject to the BCUC’s final Order. We are also able to reduce our optional rates to lessen the impact on you.

[13]         The renewal reminder also included a statement of the insured’s estimated total premium for the year…

[53]         Here, at best, the material filed by the plaintiff goes no further than establishing a possibility for bias on the part of some prospective jurors who are  ICBC policyholders. In addition to relying on the renewal notice itself, the plaintiff referred to Norsworthy v. Green, (30 May 2009), Victoria Registry 06 2644 (B.C.S.C.).  There, Macaulay J. commented, obiter, that every potential juror knows that ICBC funds damages awards, and that this creates the risk that prospective jurors may believe the higher an award in a given case, the greater the likelihood that their own insurance premiums may rise. Macaulay J. observed that such thinking is improper, and would, if disclosed, demonstrate bias. The plaintiff also filed newspaper and Internet articles referring to Shariatamadari v. Ahmadi (4 May 2009), Vancouver Registry S061583 (B.C.S.C.), where the trial judge’s investigation into complaints of juror misconduct revealed that one of the jurors, during deliberations, had expressed concern that a high damage award would drive up their own auto insurance rates. This material falls well short of establishing that a real potential exists in the circumstances of this case that some jurors may be incapable of setting aside any prejudice they may have as a result of the renewal notice, and deciding this case impartially, after receiving appropriate instructions from the trial judge.

[54]         Even if this court had the inherent jurisdiction to strike a jury notice for juror partiality, I would decline to exercise that jurisdiction in the circumstances of this case for the following reasons:

(a) the court is asked to find that ICBC’s communication to its policy holders through the renewal notices constitutes prejudicial pre-trial misconduct in the absence of an adequate evidentiary foundation;

(b) to grant the relief sought would skirt the challenge for cause process by having the court make a determination of juror partiality without requiring the plaintiff to satisfy both branches of the well-established test for juror partiality, and without any inquiry to determine whether particular members of the juror pool selected for this case could not serve impartially; and

(c) another decision-maker, the trial judge, has all the powers necessary to ensure trial fairness…

[59]         Chester provides further support for my conclusion that the plaintiff’s assertion of juror partiality is a matter which, if pursued, must be raised before the trial judge for determination through the challenge for cause process, rather than before a chambers judge who has neither the inherent jurisdiction to grant the relief sought, nor an adequate evidentiary foundation on which to do so.


The “Heavy Burden” of BC’s Loser Pays System

March 25th, 2014

I have frequently highlighted BC’s loser pays system where a losing litigant is typically ordered to pay costs to the opposing side.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating that this result can be harsh and is typically unyielding to factors such as sympathy and financial hardship.

In this week’s case (Laktin v. (Vancouver) City) the Plaintiff was shot three times by police officers rendering him paraplegic.  He sued however his claim was ultimately dismissed following a 5 week jury trial.   Vancouver sought their costs from the Plaintiff who opposed the application arguing financial hardship.  Mr. Justice Pearlman noted the loser pays system does not yield to financial concerns in and of themselves.  In awarding costs the Court noted as follows:

[24]         The plaintiff says that the defendants should be denied their costs on the basis that his life was permanently and catastrophically altered by the event of January 21, 2006 and his future care and financial support are now in jeopardy. Mr. Laktin argues that the costs of a five-week trial will impose an onerous financial burden, which the plaintiff lacks the means to satisfy.  I accept that Mr. Laktin is in difficult financial circumstances, and that an order requiring him to pay costs to the defendant will be a real and heavy burden for him.  While I have a great deal of sympathy for the plaintiff, the case law clearly establishes that the unfortunate personal circumstances and financial hardship of a litigant are not, standing alone, factors warranting a departure from the general rule that costs follow the event: Morris at para. 36; Chen at para. 11;Vesuna v. British Columbia (Transportation), 2011 BCSC 1618 at para. 8.

[25]         In Robinson v. Lakner (1998), 159 D.L.R. (4th) 191, the Court of Appeal, reversing the decision of the trial judge who had limited the costs payable to the successful defendant to $1,500 because the plaintiff was in difficult financial circumstances, held at para. 5, that “financial hardship in itself is not a sound basis for departing from the usual rule with respect to costs”. 

[26]         In Cowherd v. Fraser Valley Health Region et al, 2004 BCSC 698 at para. 5, Madam Justice Ballance cited Brown v. Blacktop Cabs Ltd. (1997), 43 B.C.L.R. (3d) 76 (C.A.); Zelenski Estate v. Fairway(1998), 60 B.C.L.R. (3d) 76 (C.A.); Churchland v. Gore Mutual Insurance Co. (unreported), September 23, 1999, No. S09912, Vancouver (S.C.); and Robinson for the principle that “in general, the unfortunate personal circumstances and characteristics of a litigant are not to be taken into account by the court in exercising its discretion in making an award of costs”.

[27]         In Morris at para. 38, Madam Justice Ker concluded that the court is unable, on any principled basis to take the plaintiff’s financial circumstances into account in determining whether to award costs.

[28]         At para. 39, Her Ladyship cited the following passage from the Reasons for Judgment of Greyell J. in Chen at para. 15:

[39]  To do otherwise would lead to inconsistent and no doubt unreasonable results. As Greyell J. so eloquently noted in Chen at para. 15:

[15] To conclude otherwise would undermine the rationale underlying Rule 14-9 and would likely lead to the promotion of litigation rather than to promote the “winnowing” function described by Hall J.A. in Catalyst Paper. It would lead to a collapse of the general principle discussed in the authorities and result in the unacceptable proposition that costs in each case would be measured not by a party’s success but by the personal financial circumstances of the litigants.

[29]         I conclude that the plaintiff’s difficult personal circumstances and financial hardship, standing alone, do not provide grounds for the Court to depart from the normal rule that costs should follow the event…

[49]         I conclude that there are no special circumstances in this case that would warrant a departure from the general rule that costs should follow the event.

[50]         Accordingly, the defendant, City of Vancouver, will have costs of this action at Scale B, together with its reasonable disbursements.

 


Paraplegia Claim Not Too Complex For Jury Trial

January 6th, 2014

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing a jury strike application in a paraplegia injury claim.

In the recent case (Laktin v. Vancouver (City)) the Defendants “were responding to a call that the Plaintiff might be suicidal” when one of the Defendant police officers “shot the plaintiff, rendering him paraplegic“.

The Plaintiff sued for damages and elected trial by Jury.  The Defendants brought an application to strike the jury notice arguing the trial was too complex for a jury to hear.  Mr. Justice Pearlman disagreed finding that despite the severe nature of the injury the matter was appropriate for jury trial.  In reaching this conclusion the Court provided the following reasons:

[35]         This is not a trial that involves multiple accidents or actions, or that raises complex issues of causation of the plaintiff’s physical injuries. The jury may have to determine the extent to which the  psychological injuries claimed by the plaintiff result from a pre-existing condition rather than the incident of January 21, 2006. That will involve the jury making findings of fact that are well within the capabilities of a modern jury.

[36]         The defendants have identified numerous issues of fact and law relating to issues of liability, the statutory and common law defences to the plaintiff’s claim of battery available to the defendants, the apportionment of fault, and damages.  It is the responsibility of the trial judge to instruct the jury concerning the legal principles that will apply to the facts as found by the jury.  The court will instruct the jury on the application and interpretation of the relevant provisions of the Police Act and the Criminal Code. 

[37]         The duties of care owed by the defendants to the plaintiff are a matter of law for determination by the trial judge rather than the jury. It will be the responsibility of the trial judge to determine whether the City of Vancouver owed a duty of care to the plaintiff, and whether, as a matter of law, there is any basis for the plaintiff’s claim against the City, other than its liability under s. 20 of the Police Act for the torts of municipal police officers.

[38]         Whether, as a matter of law, the application of the doctrine of ex turpi causa would be justified in the circumstances of this case is also a matter for the trial judge.

[39]          The defence correctly submits that the provisions of ss. 34 and 37 of the Criminal Code in force at the time of the incident that gave rise to this action add a level of complexity to this trial.   However, juries in criminal cases have been frequently called upon to apply those provisions, and with the assistance of instructions from the trial judge, have done so. I see no reason why a civil jury, properly instructed, cannot perform a similar task.

[40]         In my view, finding the facts regarding what occurred in the sequence of events that culminated in Constable Coulthard shooting the plaintiff, and determining whether the force used by the police was justified in all of the circumstances are tasks well suited to a jury composed of eight members of the community.


Why Global Settlement Offers Are OK in BC Wrongful Death Lawsuits

July 4th, 2013

Interesting reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the propriety of a global settlement in a wrongful death lawsuit involving children as beneficiaries.

In the recent case (Gaida v. McLeod) the Plaintiff Brenda Leah died “as a result of methotrexate toxicity and that the medication was mistakenly given to her daily, rather than weekly“.  The Defendants admitted liability in causing the wrongful death.   In the course of the lawsuit the Defendants and the estate of the Plaintiff reached a global settlement.   A disagreement arose and leading to a Defendant application to declare that a binding settlement took place.

The Plaintiff opposed this arguing that “ the failure to allocate specific amounts of the settlement money to the two minor children renders the proposed settlement too uncertain and vague to be enforceable.”  Mr. Justice Pearlman rejected this argument and provided the following reasons explaining why a global settlement can survive scrutiny:

[60]         In British Columbia, the court must approve the amount to be paid in settlement of an infant’s claim before the settlement of a claim under the FCA may be implemented.  The court may approve payment to an infant in an amount different from that proposed by the parties or recommended by the Public Trustee and Guardian.  The court may increase the amount to be paid in settlement of an infant’s claim beyond that proposed by the parties, and may do so at the expense of an adult claimant…

[67]         Any amounts which the parties propose to allocate to the heads of damages applicable to minor claimants, including loss of care, guidance and companionship, and loss of inheritance, are proposals only, subject to the court’s approval.  Ultimately, the court must determine the amount to be allocated to each minor claimant, which may require the reapportionment of allocations proposed by the parties within the global settlement amount.  While the global amount of settlement will not change, there can be no certainty respecting the parties’ allocation of specific amounts to each of the claimants, because the court has the exclusive jurisdiction to determine the allocation of settlement monies to the minor claimants.

[68]         Under s. 3(6) of the FCA, a defendant may make a single payment into court, in satisfaction of all claims, without specifying how that amount is to be allocated among the claimants.  There is no requirement under the FCA that a defendant making a payment into court must specify the amounts to be paid out to minor claimants.  In cases where the payment into court is accepted by the plaintiff, if the claim involves infant claimants the court must still approve the distribution of settlement monies to the minor claimants.

[69]         I conclude that the allocation of specific amounts to minor claimants, which is always subject to the court’s approval, and may vary from the amount proposed by the parties, is not an essential term for the formation of an enforceable settlement agreement.


Is An Expert Report Admissible If Your Expert Dies Before Trial?

March 25th, 2013

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue.  In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule.  The opinion evidence, however, was excluded.

In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision.  The expert died before trial.  In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:

[25]         I return now to Dr. Kay’s report.  Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident.  The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning.  I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence.  Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff.  Those tests provide a largely objective measure of the plaintiff’s cognitive functioning.  These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.

[26]         Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders.  Those opinions have a significant subjective component.  They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity.  The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation.  There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.

[27]         Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history.  The file has not been produced and apparently is not available.  Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years.  Ms. Good informed counsel that she has shredded all of her records.  If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. 

[28]         In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence.  In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.

[29]         Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders.  Relevant direct evidence is available from another source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.

[30]         Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible.  The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.


Cyclist Found 50% at Fault For Crash After Passing Vehicle on the Right

June 1st, 2012

Further to my recent article on this topic, cyclists passing a stopped vehicle on the right can be faulted for a resulting collision.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.

In this week’s case (Kimber v. Wong) the Plaintiff cyclist was approaching a T intersection.  A vehicle was stopped in his lane of travel leaving a gap for the Defendant who was driving in the opposite direction intending to make a left hand turn.  The Cyclist passed the stopped vehicle on the right.  At the sane time the Defendant turned resulting in collision.

Mr. Justice Pearlman found both parties equally to blame for the incident.  In doing so the Court provided the following reasons:

[66] By passing to the right of the stopped eastbound vehicles, Mr. Kimber put himself in a position where he was not visible to a left-turning driver and where his own view of traffic turning across his path was blocked by the vehicles to his left.

[67] The plaintiff maintains that he was the dominant driver with the right of way as he approached the intersection and that under s. 174 of the Motor Vehicle Act, and that Ms. Wong, as the servient driver intending to turn left, was required to yield the right of way to him.

[68] As Madam Justice Ballance observed in Henry v. Bennett, 2011 BCSC 1254 at para. 73:

The dominant/servient driver analysis in Walker is predicated on the footing that the dominant driver has proceeded lawfully …

[69] Here, that analysis does not apply where Mr. Kimber was in breach of s. 158 of the Motor Vehicle Act and his common law duty to take reasonable care by keeping a proper lookout.

[70] However, that does not absolve Ms. Wong from liability.  Ms. Wong made the left turn knowing cyclists using the oncoming lane often rode to the right of vehicles.  She knew she had to keep a lookout and would have to yield to any oncoming traffic, including cyclists that presented an immediate hazard.

[71] She began her turn from a point where she was unable to see beyond the windshield of the vehicle stopped at the western entrance to the intersection.   She made a continuous accelerating turn and did not stop or pause when she reached the point, just across the centre line, where she had a sight-line that would have enabled her to see the plaintiff.  Had she inched forward or stopped when she had a clear sight-line, the plaintiff would have passed safely in front of her and the accident would have been avoided.

[72] I find that in heavy traffic and where her view of the eastbound lane was limited, Ms. Wong was negligent in failing to inch forward until she could see whether there was an obstacle to her safely completing her left-hand turn.

[73] I turn now to consider whether the plaintiff was contributorily negligent.  As he passed stopped traffic on the right, Mr. Kimber ought to have been alert to the potential danger.  He failed to keep a proper lookout before entering the intersection.  He failed to take reasonable care for his own safety or that of other road users.  Here, the plaintiff could have pulled into the line of slow moving or stopped vehicles and then taken his turn to pass through the intersection.  Alternatively, the plaintiff ought to have been alert to the danger of passing stopped traffic at the intersection and ought to have brought his cycle to a stop to the right of the red Hyundai where he could observe traffic turning into the intersection.  Had he done so the collision would have been avoided.  I find that the plaintiff was also negligent and that his negligence was a cause of the accident.

[74] The apportionment of liability requires a consideration of the degree to which each party is at fault.  Fault is apportioned on the basis of the nature and extent of the departure from the respective standards of care of each of the parties:  Cempel v. Harrison Hot Springs, [1997] B.C.J. No. 2853 at para. 24 (B.C.C.A.).

[75] Here, the plaintiff and the defendant were both familiar with the intersection where the accident occurred.  For her part, the defendant was aware of the risk of cyclists approaching to the right of oncoming eastbound traffic but made her left turn without maintaining a proper lookout for a known risk.

[76] For his part, the plaintiff ought to have slowed down and entered the line of eastbound vehicles before passing through the intersection, or if he remained to the right of the line of stopped vehicles, he ought to have stopped alongside the stationary Hyundai before proceeding into the intersection, where he would have had an unobstructed view of the hazard ahead.

[77] In my view, the plaintiff and the defendant are equally at fault.  I apportion liability 50 percent to each of the plaintiff and the defendant.


Private MRI Cost Recovered as Special Damages in Injury Claim

February 22nd, 2012

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.

In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision.  The Defendant admitted fault for the crash.  The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression.  The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.

In the course of the lawsuit the Plaintiff obtained a private MRI.  At trial the Plaintiff sought to recover the cost associated with this.  The Defendant opposed this arguing it was not a reasonable expense.  Mr. Justice Pearlman disagreed and allowed recovery of this item.  In doing so the Court provided the following reasons:

[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree.  Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.