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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 Steeves’

Injury Claim Succeeds Despite 4 Year Gap in Treatment by “Germaphobe” Plaintiff

March 13th, 2018

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.

Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:

[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.


BC Supreme Court Outlines Parameters of Lay Witness Evidence from Doctors

October 17th, 2016

The line between opinion evidence and fact evidence when given by a physician is sometimes blurred.  Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Defendant sought clarity about the scope of evidence from physicians.  In discussing these boundaries Mr. Justice Steeves provided the following reasons:

[10]         The treatment of that evidence is well established and has been usefully surveyed by Justice Metzger in a previous judgment (Seaman v. Crook, 2003 BCSC 464):

[14]      The cases Ares v. Venner, supra; Sandu and Brink, Olynyk v. Yeo, supra; Butler v. Latter, [1994] B.C.J. No. 2358 (B.C.S.C.), McTavish v. MacGillivray, supra; Coulter and Ball et al., 2002 BCSC 1740 (CanLII); and s. 42(2) which provides:

            In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…

when taken together, stand for the following:

(1)  That the observations by the doctor are facts and admissible as such without further proof thereof.

(2)  That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.

(3)  That the statements made by the patient are admissible for the fact that they were made but not for their truth.

(4)  That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.

(5)  That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.

(6)  That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.

[15]      Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.

[16]      Without having met the requirements of Rule 40A, the oral testimony of the doctor interpreting his clinical records does not change the nature of the evidence contained in those clinical records. The clinical records remain evidence of the fact that he made those notes, made that diagnosis, and prescribed a certain treatment.

[17]      The opinions contained in the clinical records do not constitute independent stand-alone expert opinions. If they did, what would be the purpose of Rule 40A? It is the expert’s opinion that the court is weighing. It is the expert’s report that the court will accept or reject. It is not the opinion in the clinical records that the court is weighing.

[11]         As can be seen, much of this parallels the orders sought by the defendant, British Columbia. There is more to be said here, but I adopt the above summary by Justice Metzger. I add two other points.

[12]         First, the causation issue here relates to waiting for a medical procedure and a patient’s rights under s. 7 of the Charter, whether the latter was infringed by the former. I say this to distinguish causation here from causation on a medical chart that most frequently relates to whether a motor vehicle accident, for example, was of causative significance in a patient’s injury. This latter causation issue may be marginally relevant to the constitutional issues in this case.

[13]         This is also an appropriate place to address the plaintiffs’ submission that the Rules of Evidence cannot be used by the defendant British Columbia to require them to call every patient who has had a negative experience in the health care system in order to prove their case. I agree with that submission and point out that it is not the position of the defendant, British Columbia. What is required in this case, as with other cases, is counsel’s judgment as to the type and volume of evidence that is necessary to prove their client’s case.

[14]         A second category of evidence that arises here is evidence from a doctor, who is not certified as an expert, about his or her experience with waitlists: how long they have been, how a patient gets on a waitlist, any care issues that arise while the patient is on the waitlist and other related matters. I can see no impediment to the admissibility of evidence from doctors about their observations of how waitlists operate. This is part of the everyday experience of important actors in the health care system and it can be of value to the court. I note this is not opinion evidence about whether waiting times are medically justified or not justified. Such opinion evidence must come from a certified expert.

[15]         Another related category of evidence is also from a doctor, again not certified as an expert, who testifies about his or her observations as to a patient’s situation while waiting for a medical procedure. These observations can be about a patient being in pain, having restricted movements, not being at work, being anxious and/or depressed and other matters. I conclude that these observations are also admissible. In my view the character of these observations are the same as observations that could be made by a non-doctor. The fact that the witness is a doctor is relevant inasmuch as he or she may use medical language to describe his or her observations. But I see no difference for the purposes of admissibility with a non-doctor testifying about an accident where the victim was bleeding from the leg and a doctor saying the same victim was bleeding from the carotid artery.

[16]         I acknowledge there is an element of opinion in this type of evidence. However, it has been the case for some time that distinctions between fact and opinion can be tenuous and even false (Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 15 (QL)). This development in the law of evidence has been applied in cases involving, for example, non-expert telecommunication workers describing how to determine the location of a cellphone (R. v. Hamilton, 2014 ONCA 339, at paras. 272-9) and a police officer testifying about his observations from years of experience about the operation of street level drug trafficking (R. v. Ballony-Reeder, 2001 BCCA 293, at para. 12).

[17]         In some cases this is called the “compendium statement of fact exception” to the usual requirement for expert opinions (Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522) and in other cases it is called “lay opinion evidence”, American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042, at para. 142).

[18]         In any case I conclude that a doctor’s observations about his patient while waiting for a medical procedure or prior to being put on a waitlist, however that list is defined, are analogous to the accepted forms of this type of evidence in other cases. This includes identification of handwriting, identification of persons, identification of things; apparent age; the bodily plight or condition of a person, including illness; the emotional state of a person, whether distressed, angry and depressed; and other categories (Graat, at para. 46).

[19]         I also conclude that this type of evidence may be generalized to reflect the experience of a doctor over a period of time and experience with a number of patients in the same situation. Of course, at a certain point highly generalized evidence without sufficient particulars cannot be given significant weight. I have in mind here statements such as patients simply being “significantly disabled” or “in significant distress.” A doctor giving this type of evidence is subject to cross-examination, including questions about specific patients, and this might include details of their treatment.

[20]         There can also be some overlap between the issue of opinion evidence and issues of hearsay. As above, a doctor may well testify about his or her observations about patients waiting for a medical procedure. However, including in that evidence what a patient said can be problematic. This may be a fine line and it could result in the doctor disclosing the name of the patient and other information. Obviously in the case of the death of a declarant, the necessity component in the principled approach to hearsay has been met. Other than these general comments, I consider that the issue of hearsay will have to be considered on the basis of individual cases.

[21]         The plaintiffs rely on what they describe as the special relationship between doctors and patients, and this means that anything said in that relationship is admissible, including hearsay. This is described as “a very strong circumstantial guarantee of trustworthiness or indicia of reliability.” I do not doubt the special relationship between doctors and patients; however, there are other special relationships in society, such as parent/child and lawyer/client. There are constraints, legal and otherwise, on conversations in those relationships, but I am not aware of any authority that says that those conversations are not subject to the usual rules of admissibility of evidence in court. I see no basis for treating discussions between doctors and patients in the broad terms urged by the plaintiffs.

[22]         Turning to a fourth and perhaps final category of evidence here, the evidence may include evidence from a doctor, again not certified as an expert, who says a patient is experiencing a specific medical condition caused by waiting for a medical procedure.

[23]         In my view that is an issue that is at the heart of this litigation and ultimately for me to decide. There can be evidence on that issue that would certainly assist the court, but in my view it must be evidence in the form of an expert. To be clear, evidence on that issue or similar issues from a doctor testifying without being certified as an expert is not admissible. I take examples of this from the will-say statements that include a statement that wait times have a significant impact on the health outcomes and quality of life of patients or delayed treatment has a negative impact on the overall well-being of patients. Again, these conclusions are for the court to make based on admissible evidence including observations by physicians, expert reports and evidence from patients.

[24]         I close this discussion by saying, I have considered the trial and Supreme Court of Canada levels Chaoulli matter (Chaoulli v. Quebec (Attorney General), [2000] J.Q. No. 479, 2005 SCC 35). As urged by the plaintiff, I have treated those judgments as a guide to the issues here. I also note that the specific issues raised here were not raised or otherwise decided in Chaoulli (except for comments from the minority judges at the Supreme Court of Canada.) Here the issues are very clearly in dispute and they require consideration and resolution.

 


BC Supreme Court – Articles Cited in Expert Reports Are Not Evidence

September 22nd, 2016

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, confirming that articles cited in expert reports are not evidence and outlining how these documents can be used at trial.

In today’s case (Cambie Surgeries Corporation v. British Columbia) the Plaintiffs, who are suing the government of BC arguing certain Provincial health-care laws are unconstitutional, sought to introduce articles and texts cited by their expert witnesses into evidence.

Mr. Justice Steeves provided the following concise and helpful statement addressing the limits and procedural use of such documents:

11]         It follows that I do not agree that the plaintiffs can go as far as they would like to go and put in articles through their experts on examination in chief. I adopt the approach in the Sopinka text and add the following procedural requirements:

1.     An article or text cited by an expert in his or her report may be identified by the expert and then entered as an exhibit for identification. I emphasize that the article or text has to be cited, but the expert report does not have to specifically state that the expert is adopting the article or text.

2.     As part of the examination in chief of the expert he or she may be taken to specific parts of the article or text. These will be read into the record.

3.     The expert can use the excerpts to clarify terminology or ambiguities in his or her report or use the excerpts to make the report more understandable, and the expert can adopt the excerpts as his or her own. I acknowledge that, to be more understandable, different reports may require different applications of this approach.

4.     The article or text itself will remain an exhibit for identification and is not evidence.

5.     Any hearsay issues will be decided as set out in the Mazur judgment.

6.     The expert is not permitted to give a new opinion or adopt an opinion other than the one in his or her report.

7.     If it is not clear, the expert may be cross-examined on any part of his or her evidence.

 


$50,000 Non-Pecuniary Assessment for “Persistent” Soft Tissue Injuries

July 6th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for ‘persistent’ soft tissue injuries.

In today’s case (Smith v. Evashkevich) the Plaintiff was involved in a 2010 rear end collision that the Defendant admitted fault for.  The Plaintiff suffered soft tissue injuries to his neck and shoulder which persisted at the time of trial and were expected to continue into the future.  In assessing non-pecuniary damages at $50,000 Mr. Justice Steeves provide the following reasons:

[74]         Considering the expert evidence summarized above with the evidence at trial, I conclude that the plaintiff continues to have complaints of pain and stiffness in his neck, shoulders and back as a result of the June 2010 accident. This is supported by medical findings of tenderness on palpation. The plaintiff, his family and close friends also describe the plaintiff’s discomfort with his neck and shoulders.

[75]         These have always been soft-tissue symptoms, albeit persistent ones. The plaintiff was prescribed with a muscle relaxant on July 5, 2010 for the accident injuries. After that he has used over the counter medication.

[84]         In summary the plaintiff continues to suffer from soft tissue injuries in the neck, shoulder and back that can be causally related to the 2010 accident. While there are flare-ups he manages the symptoms well and he does not miss work as a result of them. He does not golf or snowboard like he did before the accident and he is more withdrawn in his relationships. There is some general anxiety as a result of the chronic nature of the plaintiff’s symptoms but anything more is related to his feeling of being overwhelmed at work.

[85]         In these circumstances I conclude an award of $50,000 for non-pecuniary damages is appropriate.


$95,000 Non-Pecuniary Assessment for Chronic Pain and Somatic Symptom Disorder

April 11th, 2016

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages of $95,000 for a plaintiff suffering from chronic pain and a somatic symptom disorder following a vehicle collision.

In today’s case (Dabu v. Schwab) the Plaintiff was involved in a 2011 collision the Defendant admitted fault for.  The Plaintiff injured her neck back and shoulder and developed chronic pain syndrome along with a somatic symptom disorder with a relatively poor prognosis.  In assessing non-pecuniary damages at $95,000 Mr. Justice Steeves provided the following reasons:

[51]         Overall, there are findings of physical limitations and an undisputed psychological disorder that are related to the 2011 accident. These continue and they affect the life and work of the plaintiff. I note that Dr. Shane opines that the prognosis is that the plaintiff’s psychological functioning will remain stable. From his previous comments about the persistence of somatic symptom disorder and chronic pain syndrome I take his meaning to be that these conditions will continue. This is generally consistent with the prognosis given by Dr. Misri that the prognosis is poor, if not guarded (based on different diagnoses). There is also evidence that the plaintiff’s symptoms are slowly improving and her specialist in physical medicine and rehabilitation believes she can increase her activities and she should do so…

[53]         In the subject case the plaintiff has managed to work full time and this brings her considerable satisfaction and contributes positively to her emotional well-being. However, she is not able to work at the same level as before the accident and her home life has become reduced in a significant way so she can recover from and rest for work. She also has limitations in what she can now do at work. This is discussed in more detail below under loss of future earning capacity. As a matter of non-pecuniary damages it is enough to say that the plaintiff has not lost the enjoyment that her work gives to her but there has been a related loss because of the limitations her pain and suffering have placed on her home life.

[54]         As above, the defendant relies on prior decisions for her position that the range for non-pecuniary damages in this case is $40-50,000. For example, in the Matias decision non-pecuniary damages were assessed at $50,000. However, in that case bilateral frozen shoulders were found to be very significant for the plaintiff’s disability but they were found to be unrelated to the accident in dispute. In Chen, a decision from 2004 where non-pecuniary damages of $35,000 were awarded, there were soft tissue injuries somewhat similar analogous to the ones in the subject case but the psychological diagnoses related to pain were absent. The Rabiee judgment can be similarly distinguished.

[55]         With respect to the authorities relied on by the plaintiff for her range of $128,000 to $135,000, in Poirier an award of $100,000 for non-pecuniary damages was given but the plaintiff’s condition was likely permanent and the prospect for improvement was guarded. In Hosseinzadeh there was significant pain to the point of rendering the plaintiff immobile for days at a time (at para. 103) and damages of $125,000 were awarded. Damages of $130,000 were given for non-pecuniary damages in S.R., where the trial judge accepted an expert opinion that the plaintiff would not fully recover to her former self despite completion of a pain program (at para. 169) and her ability to participate in one of her most passionate goals in life, her faith, was limited (at para. 172). Finally, in Morlan, the plaintiff could no longer work in her pre-accident work which brought her considerable satisfaction. The Court of Appeal considered non-pecuniary damages of $125,000 to be generous but not excessive.

[56]         In the subject case the plaintiff’s own expert believes she can increase her activities at home and at work and she continues in her work which brings her considerable satisfaction and enjoyment.

[57]         With the above in mind I conclude that an appropriate amount of non-pecuniary damages in this case is $95,000.00.


A Jury “Does Not and Can Not Have a Role in Determining Costs”

June 1st, 2015

Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, confirming a post trial ‘costs swing’ should not be avoided because the net payment will be less than a jury intended.

In today’s case (Grieve v. Bennett) the Plaintiff was injured in two motor vehicle collisions.  Prior to trial ICBC made a formal settlement offer of $196,300.  The Plaintiff declined this offer and proceeded to trial seeking over $1 million in damages.  The jury verdict came in at $140,300.

In arguing that the Defendant should not be awarded post offer costs the Plaintiff noted that the costs swing would be some $80,000 and this would “thwart” the intentions of the jury.  In rejecting this submission Mr. Justice Steeves noted as follows:

[59]        The plaintiff submits that awarding costs to the defendants from the date of their offer (January 16, 2015) would thwart the clear intention of the jury because it would reduce the amount available to the plaintiff by about $80,000. This figure includes the costs of the defendants (estimated by counsel for the plaintiff to be $54,000). It also includes the costs of the plaintiff because the effect of awarding the defendants costs would “deprive the plaintiff of his costs.”

[60]        In my view the answer to this submission is that the jury does not and cannot have a role in determining costs. Their role is to assess damages not costs. It follows that I do not agree with the plaintiff on this issue.


$70,000 Non-Pecuniary Assessment For Chronic Neck and Back Soft Tissue Injuries

February 24th, 2015

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries caused by two collisions.

In today’s case (Larsen v. Moffett) the Plaintiff was injured in two collisions, the first in 2010, the second in 2012.  ICBC admitted fault on behalf of the defendants in both cases.  The crashes caused soft tissue injuries to the Plaintiff’s neck and back which continued to the time of trial and interfered with his ability to work as a painter and drywaller.  His symptoms were not expected to improve.   In assessing non-pecuniary damages at $70,000 Mr. Justice Steeves provided the following reasons:

[46]         In summary this 44 year old man has suffered two soft tissue injuries to his neck and back and he has developed related headaches. These injuries cause ongoing and severe pain and they limit his daily activities, including his social life and work. With respect to the former, the plaintiff’s pain contributed significantly to the breakup of a potentially long-term relationship he started with Ms. Briere. Prior to the 2010 and 2012 injuries the plaintiff took over his father’s contracting business and, despite some personal difficulties and problems with record keeping, he was able to feel confident that he had a business that would look after him, as it did his father. That is now in significant doubt.

[47]         All of this has had a negative effect on the plaintiff’s sense of self-worth and emotional well-being. The experts are unanimous that this situation will continue into the future. The defendants’ expert suggests that there may be future improvement but this is put in very guarded terms.

[48]         Taking this into account with the authorities cited to me I assess the non-pecuniary damages in this case to be $70,000.


Witness Entitled To Copy of Statements Provided To ICBC Despite Litigation Privilege Claims

August 26th, 2013

Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, addressing the entitlement of a witness to a collision obtaining a copy of a statement they provided to ICBC.

In last week’s case (Minnie v. ICBC) the petitioner was the witness to a collision involving a vehicle and a pedestrian.  She gave ICBC a statement detailing her account of what occurred.  The pedestrian ultimately sued the ICBC insured motorist for damages.  The witness wished to obtain a copy of her statement to ICBC but ICBC refused to disclose this.  The witness brought a Freedom of Information request for the statement but this did not prove fruitful.  The witness brought a petition in the BC Supreme Court.  ICBC opposed arguing there were further steps the witness could have taken through the Freedom of Information process and further that the statement was protected by litigation privilege.  Mr. Justice Steeves concluded that neither of these were valid reasons to keep a copy of the statement away from the witness.  In ordering ICBC to disclose a copy of the statement to the witness Mr. Justice Steeves provided the following reasons:

[41]  Although the respondent is entitled to have its litigation privilege protected, fairness requires that the petitioner be provided with a copy of her statement.  The petitioner is a stranger to the litigation about the accident; she is not a party and she has no interest in it.  I note that, if the petitioner was a party, there would be no question that she would be entitled to her statements, as I will discuss below.  I have some difficulty imposing on a private citizen the rules of a “sporting event” that are more onerous than those placed on parties.  The risk of applying those rules to a non-litigant without legal representation is that a person can, through accident or ignorance, make a mistake.  The mistake can be only embarrassing to the non litigant and/or it can distort the evidence before the court.  Neither is desirable.

[42]  Within the bounds of an adversarial system, private citizens should be encouraged to participate in the litigation process and disclosure to them of previous statements, as in this case, is a modest way to accomplish that objective.  The petitioner could have insisted on some kind of legal document that assured her that she would get a copy of her statement before she gave it.  She did not do that.  In m view, she did not have to do it ad nor should she now be at a disadvantage greater than a party for fail

[43] The petitioner is entitled to a copy of her statements as soon as practicable in order to review them herself and with her solicitor. However, I set conditions on that disclosure to recognize the litigation privilege that also attaches to the statements.  The disclosure of the statements does not extend to disclosure by the petitioner to other persons, including the plaintiff in the accident that she witnessed (or counsel for the plaintiff).  If, ultimately, there are issues at trial that involve the petitioner’s statements, they will have to be resolved by the trial judge.

 


Why An Acquittal of Criminal Charges Is No Barrier to a Civil Negligence Case

June 28th, 2013

If the OJ Simpson saga taught us anything it is that being acquitted of criminal charges does nothing to stop a civil action for damages from proceeding.  Reasons for judgment were released last week by the BC Supreme Court, Vernon Registry, demonstrating this.

In the recent case (McClusky v. Desilets) the Plaintiff was profoundly injured in a single vehicle collision in 2008.  The driver was charged with dangerous driving under the Criminal Code.  The case proceeded to trial where he was acquitted.  The Defendant then sought to have the lawsuit by the injured plaintiff against him dismissed arguing that “the issue of liability was determined when he was acquitted of criminal charges“.

Mr. Justice Steeves quickly dispatched this argument, finding the matter could proceed and ultimately determined that the defendant was negligent in causing the collision.  In addressing the Defendant’s argument the Court provided the following reasons:

[153]     With regards to the criminal charges against the defendant, he was charged with dangerous driving causing death and dangerous driving causing bodily harm. A trial was held in November 2010 and, on December 3, 2010, Mr. Justice Dley acquitted the defendant on all charges. Among other findings he concluded that there were insufficient factors on speed that would elevate the facts of the case to the level of a criminal offense. As a result it was not possible to conclude beyond a reasonable doubt that the defendant’s driving was objectively dangerous. Further, in reviewing all the evidence, the trial judge concluded that the defendant’s driving was not a marked departure from the standard of care that a reasonable person would observe in his circumstance (paras. 59, 61).

[154]     It is now submitted on behalf of the defendant in this civil action that the issue of liability has been decided in his favour by the previous criminal proceedings. That is, he is not liable for the accident and the injuries to the plaintiff.

[155]     The approach of previous decisions on this issue have focused on issue estoppel (Petrelli v. Lindell Beach Holiday Resort Ltd. 2011 BCCA 367 at para. 63; citing Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 25). With regards to issue estoppel there are three preconditions: the same question has been decided in the previous proceeding, the previous decision was final and the parties in both proceedings are the same. In the subject case, the parties are not the same as the criminal proceeding and the issues of criminal negligence causing death and dangerous driving causing bodily harm are not the same issues as the civil liability of the defendant here. On this basis issue estoppel has no application.

[156]     With regards to abuse of process, such an abuse has been found where an arbitrator was asked to re-litigate whether an employee was guilty of a criminal sexual assault. A previous criminal court had convicted the employee. The arbitrator found that that the employee had not committed the sexual assault and the courts set this decision aside (Toronto (City) v. CUPE (2001), 55 O.R. (3d) 541,149 O.A.C. 213).

[157]      In the subject case, again, the defendant was acquitted of criminal charges with regards to the same incident that gave rise to this civil action. However, the cause of action in the latter is based in negligence not in the Criminal Code. I am not re-litigating whether the defendant committed a criminal offence, as was apparently the case in Toronto (City).

[158]     I find that it is not an abuse of process for the plaintiff to seek civil damages against the defendant when the defendant had previously been acquitted of criminal charges.


$65,000 Non-Pecuniary Assessment for Chronic Frontal Headaches

March 6th, 2013

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages for chronic headaches caused by a motor vehicle collision.

In this week’s case (Murphy v. Obrien) the Plaintiff was involved in a 2007 collision.  The Defendant accepted liability.  The Plaintiff suffered various soft tissue injuries which posed problems but the most debilitating consequence were chronic frontal headaches which were still symptomatic at the time of trial and expected to continue into the future.  In assessing non-pecuniary damages at $65,000 Mr. Justice Steeves provided the following reasons:

[51]         There is general acceptance among the experts that the plaintiff suffered a soft tissue injury to his neck on May 17, 2007. There was no fracture, dislocation or nerve root injury. There is restricted range of motion in all directions and even simple tasks such as reading bring on headaches and neck pain. The plaintiff testified that, at times, he actually vomits because of the pain from his headaches. He has tried various treatments with some affect. The most recent has been Botox injections which have given him some relief. For example, Dr. Tsui administered the injections and, in a report dated May 10, 2012, he reported that the plaintiff said “the migrainous headaches have abated since the last treatment.” Similarly a report dated August 15, 2012 reported a “good response in terms of the migraines.” Despite this improvement the frontal headaches continue. The plaintiff’s evidence about his headaches is consistent with that of Dr. Tsui.

[52]         Therefore, the current situation is that the severe migrainous headaches have abated but the frontal headaches remain and they are chronic. I conclude that these headaches, and the neck pain, are as a result of the May 2007 motor vehicle accident. Further, these symptoms are independent of any problems with the left knee although, as will be seen, the left knee is certainly a relevant and complicating factor. These headaches are obviously very real for the plaintiff, with the consequences noted, and they are consistent with the medical evidence…

[62]         Overall, I conclude that an amount of $65,000 is an appropriate amount for non-pecuniary damages in this case. That figure recognizes the chronic frontal headaches. It also recognizes the undoubted emotional toll the headaches have had on his life, including his family, friends and the limitations on activities he used to do before the 2007 accident. And, it recognizes that pain medications for the left knee have played a role in the current situation.

For more BC non-pecuniary assessments for headaches you can click here to search this site’s archives.