$50,000 Non-Pecuniary Damage Assessment for Chronic STI's; Adverse Inference Discussed

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing damages for chronic soft tissue injuries arising from a motor vehicle collision.
In last week’s case (Milburn v. Ernst) the Plaintiff was operating a motorcycle when it was rear-ended by the Defendant’s vehicle.  The impact “resulted in the motorcycle becoming embedded in the gill of the (Defendant’s vehicle); to the point that only half of the motorcycle could be seen protruding from the front of the car“.
The Plaintiff, although he missed little time from work, suffered soft tissue injuries that were expected to pose long term limitations.  In assessing non-pecuniary damages at $50,000 Madam Justice Fitzpatrick made the following findings and provided the following reasons:

[96] After having considered the evidence from Mr. Milburn, the evidence of his independent witnesses and the medical evidence referred to above, I find as a fact that Mr. Milburn suffered the following injuries as a result of the accident:

a)       he was bruised in the pelvic region, he had wrist pain and he had some cognitive dysfunction and sleep disturbance, all of which were resolved shortly after the accident;

b)       he had some chest pain in the fall of 2007 arising from his temporary use of crutches after the knee surgery;

c)       he had severe pain in his neck, back and shoulder, all of which were largely resolved by December 2007;

d)       the disc bulges found to be present in Mr. Milburn’s spine were not caused by the accident but were rendered symptomatic as a result of the accident; and

e)       he continues to experience discomfort and mild pain in his neck and back from time to time, which increases to the point of severity depending on his level of physical activity and his level of physical fitness…

[105] I accept the evidence of Mr. Milburn that he enjoyed an active and physical life before the accident. In the aftermath of the accident, he experienced significant pain and discomfort relating to his injuries at that time which, for the most part, were resolved by December 2007.

[106] Since the accident, he has struggled to deal with the back and neck pain that arises from time to time, particularly given his employment, which is physically demanding and at times, can be quite physically demanding. He has not, however, required prescription medicine to deal with that, which speaks to the severity of the pain that he experiences from time to time. In addition, his doctors have recommended that with a proper exercise regime and with care taken in the manner of lifting and other physical activities, he should be able to minimize the difficulties that he might otherwise have. This recommendation appears to have been taken up by Mr. Milburn in that he is now regularly exercising on his own.

[107] His need of physiotherapy for some years now has been infrequent, a sign that the need for more formal treatment has not been great, despite what he describes as “flare-ups” in his condition.

[108] Based on the medical evidence of Dr. Badii, which I accept, his condition is not expected to materially improve from this time forward and as such, it is to be expected that Mr. Milburn will continue to suffer some pain in the future.

[109] In addition, I find that the accident has resulted in Mr. Milburn abandoning some of his recreational activities, such as kickboxing, snowboarding and rollerblading. In addition, some of his favourite activities have been curtailed. His love and enjoyment of motorcycling is now somewhat limited to the extent that he has to stop frequently while on long rides. In addition, acting roles with stunt assignments are no longer open to him, an activity that he particularly enjoyed although such roles were limited.

[110] I accept that the accident has also affected his personal life in that he has some pain accomplishing more physically demanding tasks around the home. I note, however, that he continues to enjoy what can only be called very physical activities, and no doubt more enjoyable activities, such as weightlifting, ATVing, scuba diving, snorkeling and horseback riding.

[111] I find that Mr. Milburn is entitled to non-pecuniary damages in the amount of $50,000.

This case is also worth reviewing for the Court’s discussion of the ‘adverse inference‘ principle.  In the course of the lawsuit the Plaintiff obtained two privileged medico-legal reports.  The Plaintiff maintained the claim of privilege through trial and did not introduce these reports into evidence.  The Defendant argued that an adverse inference should be drawn.  Madam Justice Fitzpatrick disagreed and provided the following reasons:

[87] The defence also points out that in Mr. Milburn’s list of documents, he listed two privileged medical-legal reports dated June 11 and 12, 2010. These were commissioned by Mr. Milburn’s counsel but were never served or presented at trial. The defence submits that an adverse inference should be drawn that the evidence in those reports would be contrary to Mr. Milburn’s case. Cases cited in support include Buksh v. Miles, 2008 BCCA 318 at paras. 30-35, 296 D.L.R. (4th) 608; Bronson v. Hewitt, 2010 BCSC 169 at paras. 323-337, 58 E.T.R. (3d) 14; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762 at paras. 118-122. In Buksh, at para. 31, the court cites from Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.) at 689, that in a personal injury claim, the plaintiff “ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so.”

[88] In my view, this is not an appropriate case to conclude that an adverse inference should be drawn. There is no evidence that the authors of those reports even saw Mr. Milburn. If so, Mr. Milburn could have been examined on the point and copies of clinical notes obtained, such as was done in Bouchard (see also para. 35 of Buksh). Mr. Milburn’s counsel has advised that this evidence was not submitted because it was of no assistance to the court, not that it was adverse to the current medical evidence. In fact, there may have been any number of reasons why the reports were not submitted and while it is possible that they contradicted the reports of Drs. Behroozi and Badii either in whole or in part, it is equally possible that they did not materially add to those reports. As was noted by the court in Bronson at para. 329, an adverse inference can only be drawn if such testimony would be superior in respect of the facts to be proved.

[89] Counsel for Mr. Milburn is entitled to prepare his case, and obtain whatever expert reports that might assist in advancing his case. To suggest that any decision not to use an unidentified expert report leads to an adverse inference in respect of any case is going well beyond the general proposition relating to adverse inferences. The disclosure process is intended to provide opposing counsel with the means of testing the claim of privilege, not to allow such claims to be made that an adverse inference should be drawn in these circumstances.

adverse inference, bc injury law, Madam Justice Fitzpatrick, Milburn v. Ernst

Comments (46)

  • I simply want to mention I am just all new to weblog and actually savored this web page. Very likely I’m want to bookmark your website . You surely have tremendous article content. Many thanks for sharing your website.

  • I do agree with all the ideas you’ve presented in your post. They are very convincing and will certainly work. Still, the posts are too short for newbies. Could you please extend them a little from next time? Thanks for the post.

  • Terrific paintings! This is the type of information that should be shared around the web. Shame on the seek engines for now not positioning this post upper! Come on over and discuss with my web site . Thank you =)

  • What i don’t understood is in reality how you are now not actually a lot more neatly-appreciated than you may be now. You’re so intelligent. You realize therefore significantly relating to this matter, made me for my part consider it from numerous numerous angles. Its like men and women aren’t interested unless it is something to do with Lady gaga! Your own stuffs nice. All the time deal with it up!

  • Thank you so much for giving everyone an extraordinarily superb opportunity to read from this website. It is usually very pleasing and also packed with a great time for me personally and my office colleagues to search your site really three times every week to read the latest items you will have. And lastly, I’m so certainly astounded considering the staggering secrets served by you. Some 4 points in this post are essentially the finest I’ve had.

  • Admiring the time and effort you put into your site and detailed information you present. It’s awesome to come across a blog every once in a while that isn’t the same unwanted rehashed information. Wonderful read! I’ve bookmarked your site and I’m including your RSS feeds to my Google account.

  • I will right away grab your rss as I can not find your email subscription link or e-newsletter service. Do you’ve any? Kindly let me know so that I could subscribe. Thanks.

  • I think that is among the so much vital information for me. And i am glad reading your article. However want to remark on few common things, The website style is wonderful, the articles is actually nice : D. Excellent activity, cheers

  • I was just looking for this information for some time. After 6 hours of continuous Googleing, finally I got it in your web site. I wonder what’s the lack of Google strategy that don’t rank this type of informative websites in top of the list. Normally the top websites are full of garbage.

  • Wow! This could be one particular of the most useful blogs We’ve ever arrive across on this subject. Actually Fantastic. I am also a specialist in this topic therefore I can understand your hard work.

  • Excellent blog you have here but I was curious about if you knew of any community forums that cover the same topics talked about in this article? I’d really like to be a part of online community where I can get advice from other experienced people that share the same interest. If you have any suggestions, please let me know. Appreciate it!

  • Does your blog have a contact page? I’m having problems locating it but, I’d like to send you an email. I’ve got some suggestions for your blog you might be interested in hearing. Either way, great blog and I look forward to seeing it expand over time.

  • Nice weblog right here! Also your site rather a lot up fast! What host are you the usage of? Can I get your associate hyperlink in your host? I wish my site loaded up as quickly as yours lol

  • I like this web site so much, saved to fav. “Respect for the fragility and importance of an individual life is still the mark of an educated man.” by Norman Cousins.

  • I’ll immediately grab your rss as I can’t find your email subscription link or newsletter service. Do you’ve any? Kindly let me know in order that I could subscribe. Thanks.

  • Its like you read my mind! You appear to know so much about this, like you wrote the book in it or something. I think that you could do with a few pics to drive the message home a little bit, but instead of that, this is fantastic blog. An excellent read. I’ll definitely be back.

  • hello!,I love your writing very a lot! proportion we keep up a correspondence extra approximately your article on AOL? I require a specialist in this area to unravel my problem. Maybe that is you! Taking a look forward to peer you.

  • My spouse and i were quite relieved Edward could finish off his homework from the ideas he made through the blog. It’s not at all simplistic to simply continually be making a gift of secrets which often most people might have been making money from. We fully grasp we need the writer to be grateful to for this. The most important explanations you made, the easy site menu, the relationships you will give support to promote – it is everything spectacular, and it’s really letting our son and the family know that this content is thrilling, and that is rather vital. Many thanks for all!

  • Normally I don’t learn post on blogs, but I would like to say that this write-up very pressured me to take a look at and do it! Your writing style has been amazed me. Thanks, quite great article.

  • I enjoy you because of all your valuable efforts on this website. My aunt take interest in managing investigations and it’s really simple to grasp why. Many of us hear all relating to the compelling tactic you convey precious tips via this web site and therefore cause participation from other ones on this subject matter plus my princess is in fact discovering a lot of things. Enjoy the rest of the year. Your performing a glorious job.

  • Hello there! Would you mind if I share your blog with my twitter group? There’s a lot of folks that I think would really appreciate your content. Please let me know. Thanks

  • I’ve recently started a blog, the information you provide on this website has helped me tremendously. Thanks for all of your time & work. “Cultivation to the mind is as necessary as food to the body.” by Marcus Tullius Cicero.

  • Hello There. I discovered your weblog the use of msn. That is a very well written article. I will be sure to bookmark it and come back to read more of your useful information. Thank you for the post. I will certainly comeback.

  • I think this is among the most significant information for me. And i’m glad reading your article. But want to remark on some general things, The site style is ideal, the articles is really excellent : D. Good job, cheers

  • Hello! This is my first comment here so I just wanted to give a quick shout out and say I genuinely enjoy reading through your blog posts. Can you suggest any other blogs/websites/forums that deal with the same topics? Thanks a ton!

  • There are definitely a number of details like that to take into consideration. That could be a nice level to bring up. I provide the ideas above as normal inspiration however clearly there are questions like the one you carry up where crucial factor will be working in sincere good faith. I don?t know if finest practices have emerged around issues like that, however I am sure that your job is clearly identified as a fair game. Each boys and girls really feel the affect of just a second’s pleasure, for the rest of their lives.

  • I have to get across my gratitude for your generosity for persons that have the need for help with this important issue. Your real dedication to passing the message all-around ended up being extremely significant and have truly made people just like me to arrive at their objectives. Your warm and helpful guide means a lot a person like me and much more to my peers. Thanks a lot; from all of us.

  • My coder is trying to convince me to move to .net from PHP. I have always disliked the idea because of the expenses. But he’s tryiong none the less. I’ve been using Movable-type on numerous websites for about a year and am nervous about switching to another platform. I have heard fantastic things about blogengine.net. Is there a way I can transfer all my wordpress content into it? Any help would be greatly appreciated!

  • Yesterday, while I was at work, my cousin stole my apple ipad and tested to see if it can survive a thirty foot drop, just so she can be a youtube sensation. My apple ipad is now destroyed and she has 83 views. I know this is totally off topic but I had to share it with someone!

  • With havin so much content do you ever run into any issues of plagorism or copyright infringement? My website has a lot of unique content I’ve either authored myself or outsourced but it seems a lot of it is popping it up all over the internet without my agreement. Do you know any ways to help stop content from being stolen? I’d definitely appreciate it.

Comments are closed.


If you would like further information or require assistance, please get in touch.


Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy