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More on Car Accident Claims, Complexity and Jury Trials

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized.

When car accident cases are prosecuted in the usual course (not using Rule 66 or 68) in the BC Supreme Court either side can elect to have trial by jury.
In certain circumstances, however, a jury trial is inappropriate and a court and strike a jury notice.  One of the reasons a court can strike a jury notice is complexity.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this issue.
In today’s case (McIntosh v. Carr) the Plaintiff was involved in 3 car accidents and the parties agreed that all 3 cases were to be heard at the same time.  Fault was not at issue in any of the cases but the alleged injuries were serious and included ‘pain and suffering, shock, brain injury, concussion, physical injuries to the head, neck, back, shoulders and knee, headaches, cuts, loss of sensation in the scalp, depression, anxiety, insomnia, sleep disorder and post-traumatic stress disorder‘.  The case was expected to be complex, take 25 days to hear with over 30 witnesses including 17 professionals testifying.
The Defendants elected trial by Jury.  The Plaintiff’s lawyer brought a motion to dismiss the jury notice claiming that it was too complex.  Mr. Justice Macaulay of the BC Supreme Court granted the Plaintiff”s motion and in doing so summarized and applied the area of the law as follows:

[6]           A 25 day trial requires a significant commitment by jurors. Experience tells us that juries are capable of understanding the expert medical evidence typically heard in cases involving an alleged brain injury but experience also indicates that juries have more difficulty retaining that understanding throughout longer trials. This affects my consideration whether it is convenient for a jury to undertake the medical, or “scientific” investigation required in this case.

[7]           A 25 day trial involving intricate medical, psychological and behavioural issues involving a young person who was not yet fully developed at the material time, presents such a risk. That risk is compounded by a number of complications that the evidence must address. Taken together, these factors also render the issues too complex for a jury.

[8]           It is now about ten years post-accidents. Over that period, the plaintiff has undergone extensive treatment and a variety of testing including cognitive or psychological testing. The outcome of testing as it relates to the diagnosis or proof otherwise of the alleged brain injury is complicated by factors such as the identification and effect of a pre-existing learning disability as well as other social, scholastic and family stressors already present in the plaintiff’s life before the accidents. There are live issues as to whether these factors explain or at least materially contributed to the plaintiff’s ongoing difficulties. The factors also impact the application of any expert evidence respecting future pecuniary losses.

[9]           The defendants contend that the evidence is not too complicated for a jury. They point out that the court refused to strike the jury notice in Forde v. Interior Health Authority (c.o.b. Royal Inland Hospital), 2009 BCSC 254, a medical negligence claim involving 19 experts and 26 detailed expert reports and summaries of evidence. The medical evidence covered some of the same areas as in the case at bar as well as others, including neurosurgery, radiology, neuroradiology and kinesiology. The trial in that case was scheduled for 15 days. In another case, Furukawa v. Allan, 2007 BCSC 283, the court also declined to strike the jury notice. The plaintiff claimed a brain injury in that case and the trial, as here, was scheduled for 25 days.

[10]        Each case is necessarily fact dependent but the results in Forde and Furukawa may be taken as confirmation that factors such as the length of trial, the extensive number of medical experts and complex medical issues do not automatically remove the right of a party to a trial with a jury.

[11]        For convenience, Rule 39(27) in its entirety reads:

Court may refuse jury trial

(27)      Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)        within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)         the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)        the issues are of an intricate or complex character, or

(b)        at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25).

[12]        In Furukawa, commencing at para. 10, Dorgan J. summarized the authorities respecting the analysis required under the rule. The court must first determine, as a question of fact, whether the matters at issue at trial will require either a prolonged examination of documents or accounts or a scientific or local investigation. If either answer is yes, the court must consider whether a jury can conveniently make the examination or investigation. Convenience in this sense refers to the ability of the jury to both understand the evidence and retain that understanding throughout the trial. The length of trial may be a factor, albeit not determinative, in addressing the issue of convenience. The court also has discretion to strike the jury notice if the issues are too intricate or complex.

[13]        It is likely in the present case that the plaintiff’s entire life, at least from the start of school through to the time of trial, a period of about 20 years, will be subjected to microscopic expert analysis and comment. That will require the trier of fact to absorb and retain a vast amount of information, some of which is likely to be, at least, nuanced if not complex, with a view to later deciding the issues.

[14]        I am persuaded that this is not an appropriate case for a jury. It would not be convenient, as defined by the authorities, for a jury to undertake the scientific examination required in this case. In any event, the issues are too intricate given their intertwined nature and, in some instances, likely too complex as well.

ICBC Injury Claims, Video Surveillance and Disclosure

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized.

It is not uncommon for insurance companies such as ICBC to conduct video surveillance of plaintiffs involved in injury litigation.  Normally such video evidence is protected by privilege and ICBC does not need to disclose it unless they want to rely on it at trial.  In these circumstances the BC Supreme Court Rules don’t require disclosure until shortly before trial.
What if ICBC shares the evidence with their expert witnesses?  Does this result in a waiver of privilege?  The BC Supreme Court dealt with this issue in 2006 and today reasons for judgement delivered by Mr. Justice Johnston were transcribed and published by the BC Courts website addressing these facts.
In the decision released today (Lanthier v. Volk) the Plaintiff was injured in a motor vehicle collision and was prepared to proceed to trial.  The defence lawyer delivered expert medical reports which relied in part on the facts depicted in video surveillance conducted on behalf of the Defendant.  The Plaintiff asked for disclosure of these films and Defendant refused claiming privilege over the films.
On application of the Plaintiff for disclosure Mr. Justice Johnston held that disclosure of the films to the defendants expert physicians resulted in a waiver of privilege such that the films needed to be disclosed to the Plaintiff.  The courts key reasoning is reproduced below:

[16] The competing consideration is that the tendency given the rules, such as the Evidence Act, ss. 10 and 11, Rule 40A and the rules relating to production, has been over the last number of years away from what used to be a trial by ambush style of advocacy toward pre-trial disclosure, forced or otherwise, in order to prevent two things:  One, impediments to settlement that keeping all one’s cards close to the vest tends to foster, but more to the point, what I indicated was a concern during argument, and that is the possibility, likelihood or probability that late disclosure, as Mr. Turnham would have it when counsel decides to call the witness or tender the written opinion, might lead to an adjournment of the trial, or, at minimum, an argument in the middle of a jury trial whether it should be adjourned.

[17] I conclude that privilege over the video has been waived by the delivery of reports of experts who have stated, each of them, that they have relied upon, in part, what they saw on the video.  I conclude that waiver is more logical, more defensible when what truly is disclosed in the reports ostensibly as the facts upon which the expert — and I refer now particularly to Dr. Warren who most helpfully listed what he observed — the facts upon which the expert relied, is, when really that expert’s interpretation of what the expert saw on the videotape.  It is not possible, in my view, for the opposing party to adequately prepare, either to cross-examine the expert if the expert is called, or to brief the parties’ own witnesses, on the strength of a description in writing of a witness’s interpretation of what is shown on the video.  To adequately prepare for trial the plaintiff must have the videotape to show to his witnesses and to review himself.  Trial fairness, as well as the promotion of efficiency in the courts and the trial process, dictates disclosure, so I order the videotape disclosed forthwith.

More from BC Court of Appeal on Jury Trials and Counsel Statements

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.

I recently posted on the potential for mistrials when counsel give their personal opinion in an opening statement to a jury.  Today reasons for judgement were released by the BC Court of Appeal further discussing, amongst other topics, proper opening remarks by counsel in a Car Crash case.
In today’s case (Moskaleva v. Laurie) the Plaintiff suffered serious injuries including a Mild Traumatic Brain Injury (MTBI) in a 2002 motor vehicle collision.  The Plaintiff was crossing with the light in a marked cross-walk in Maple Ridge at the time.
After a 18 day jury trial damages of over $1.9 million were awarded for her injuries and losses.  The Defendant appealed on 5 grounds stating that
1.  the opening submissions of respondent’s counsel were improper and prejudicial;
2.  the cross-examination of a psychiatrist called by the appellant exceeded the bounds of proper cross-examination and thereby prejudiced the jury;
3.  the trial judge’s interventions and questions during the testimony of three expert witnesses called by the defence impugned the credibility of those witnesses.
4.  the appellant alleges that the trial judge erred in his instructions to the jury by failing to explain properly the law relevant to past and future economic loss and by inaccurately stating the appellant’s position on that issue.  The relief the appellant seeks on the first four grounds of appeal is an order for a new trial.

5.  that the awards for non-pecuniary damages, past wage loss, and future economic loss are inordinately high, not supported by the evidence, and inconsistent with the jury’s award for cost of future care.

The Appeal was dismissed on all 5 grounds.  This case is worth reviewing for the courts discussion on these areas of law particularly the permissible scope of cross examination of experts and counsels opening statements.  Below I reproduce the Courts analysis of the opening statement of the Plaintiff’s lawyer:

[19] Under the first ground of appeal, the appellant argues that the opening submissions of respondent’s counsel were improper and prejudicial and resulted in an unfair trial.  To support her submissions that the opening statement failed to conform to the proper function or purpose of an opening, the appellant refers to Halsbury’s Laws of England, 3rd ed. (London: Butterworths, 1953), vol. 3, at 69, and to what was said by Finch C.J.B.C. in Brophy v. Hutchinson, 2003 BCCA 21 at paras. 24-25, 9 B.C.L.R. (4th) 46.  As to the effect of an improper opening statement, the appellant refers to Brophy at para. 48.

[20] The appellant complains that the opening statement contained no explanation as to its purpose and, rather than outlining the facts the respondent expected to prove, gave a description of the accident, the mechanism of a brain injury, and the respondent’s training and employment background, all as if they were established fact, thereby giving the impression that all that was important for the jury to consider was the evidence of the respondent’s symptoms in the aftermath of the collision.  The appellant further submits that in the opening, the respondent’s symptoms and the consequences of the accident were couched in pathos through an emotional appeal to the challenges faced by the respondent as an immigrant to Canada from Russia.  The appellant argues that while the complete effect of the opening remarks of respondent’s counsel cannot be known to a certainty, the character of those remarks was clearly prejudicial.  The appellant contends that the fullness of their effect was to cement for the jury as fact the assertion that the respondent had suffered a brain injury, was incapable of performing work, and had suffered a significant economic loss.

[21] The appellant also complains that a phrase used by the respondent’s lawyer at the conclusion of his opening improperly suggested that the accident, instead of being the result of negligence, was volitional.  In that regard, the appellant refers to the statement in the opening that the appellant “chose to launch her car forward from that stop sign and not pay attention to who was in the cross-walk”.  In the appellant’s submission, the effect was to present the appellant’s case in the context of the respondent as victim and the appellant as culprit.  The appellant argues that the effect was to demonize the appellant at the inception of the trial, thus implicitly characterizing her as a person who intentionally disregarded the interests of others, rather than being merely negligent.

[22] Another complaint the appellant makes is that it was improper for respondent’s counsel to use evidence in the form of photographs in the opening.

[23] In my view, none of the arguments put forward under the first ground of appeal can succeed.

[24] The appellant’s characterization of what was said in the respondent’s opening is overstated and, in some instances, inaccurate.  Prior to counsel for the respondent beginning his opening statement, appellant’s counsel informed the trial judge that he did not dispute that the appellant was negligent but said he was not in a position to admit liability.  As a result of the position taken, liability was obviously in issue.  In the circumstances, for respondent’s counsel to refer to the respondent’s recollection of the accident in his opening statement is unremarkable.  At trial, appellant’s counsel did not object to the description given by respondent’s counsel as to how the accident had occurred and did not complain that respondent’s counsel had “demonized” the appellant.

[25] The suggestion that a miscarriage of justice occurred as a result of what was said by respondent’s counsel in his opening about the circumstances of the accident is further undermined when considered along with the submissions on liability made later in the trial.  Before making his final submission to the jury, respondent’s counsel advised the trial judge and appellant’s counsel that he intended to submit that “one of the reasons why we’re here is because Ms. Laurie [the appellant] says she’s not at fault”.  Appellant’s counsel stated he did not have a problem with that submission and later agreed it was appropriate for the trial judge to instruct the jury to find the appellant negligent.  I further note that during the course of his closing submissions, appellant’s counsel told the jury:

Now, you’ve heard that Ms. Laurie ran her vehicle into the plaintiff.  There’s no doubt.  There’s no doubt that Ms. Moskaleva was in the intersection.  There’s no doubt that Ms. Moskaleva had the right-of-way.  There is nothing that I could say to suggest that Ms. Moskaleva did anything wrong, or that my client demonstrated all the care that she should have.  She didn’t.  She didn’t.  As a result you may find that my client was negligent.  I don’t have anything to say on that.  Nothing I can say.  I think it’s fairly obvious.

[26] In view of the foregoing, there is no substance to the submission that the remarks in the respondent’s opening about the appellant’s manner of driving at the time of the accident resulted in the kind of prejudice that would require a new trial.

[27] In his opening, respondent’s counsel showed the jury some photographs of the respondent and her husband.  Appellant’s counsel had been informed in advance by respondent’s counsel that he intended to use the photographs in his opening and appellant’s counsel told the trial judge he did not have “a problem” with the photographs.  After the opening had been given, appellant’s counsel repeated that he did not object to the use of the photographs.

[28] The appellant’s contention that the respondent’s counsel stated evidence as fact, thereby resulting in prejudice requiring a new trial, ignores the trial judge’s opening instructions to the jury.  Near the commencement of the trial, the judge gave the jury various instructions, including an instruction on the purpose of counsel’s openings.  After referring to the burden and standard of proof, the trial judge said, in part:

I will turn next to the opening remarks of counsel.  One of the Mr. Faheys will begin the trial once I have concluded my remarks.  He will take the opportunity to explain to you what he expects the evidence will disclose and give you an overview of his case.  Counsel for the defendant will do so at a later time after the plaintiff’s evidence has been called.  These opening remarks are made so that you will have a better understanding of the nature of the evidence that the parties intend to call; however, the opening remarks are not evidence and you cannot rely on what the lawyer says in his opening to prove the facts that you have to prove to decide the case.  You must only accept that the case is proven based on evidence that is called at court.

[29] Counsel for the respondent referred throughout his opening to the types of evidence he intended to adduce and what that evidence would show.  He specifically told the jury there would be controversy in the evidence concerning brain injury, concussion, and post-concussion syndrome and asked the jury to pay close attention to the evidence that would be led.  There were some phrases or statements in the respondent’s opening that might have been more carefully couched, but considered in the context in which they were uttered, they were not such as to exclude consideration of the case for the appellant.

[30] After the respondent’s counsel had concluded his opening statement, appellant’s counsel asked the trial judge to remind the jury that the opening was not evidence.  The trial judge decided his earlier instruction was sufficient, and in his charge, the judge reminded the jury that they were to rely on their own recollection of the evidence, not anything said by counsel.

[31] Of considerable significance in regard to this ground of appeal is the fact that appellant’s counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening.  This is a case in which appellant’s counsel specifically put his mind to the effect of the opening and elected not to seek an order discharging the jury. A deliberate election, such as occurred in this case, is a powerful circumstance militating against the appellant’s submission that a new trial is required to rectify an unfair trial.  While the facts of the case differ from the case at bar, the observation of Hall J.A. in R. v. Doyle, 2007 BCCA 587 at para. 28, 248 B.C.A.C. 307, is apposite:

In my opinion, having made a reasoned decision not to seek a mistrial, I do not consider it is open now to counsel for the appellant to advance an argument that the discovery and use by the judge of the evidence resulted in an unfair trial proceeding.  A rational choice was made at trial by experienced and competent counsel and it would not be appropriate to now allow this point to be the foundation of a contrary position in this Court.

[32] Further support for the view expressed by Hall J.A. may be found in Rendall v. Ewert (1989), 60 D.L.R. (4th) 513, 38 B.C.L.R. (2d) 1 at 10 (C.A.), and in Morton v. McCracken (1995), 7 B.C.L.R. (3d) 220 at para. 13, 57 B.C.A.C. 47.

[33] I would not accede to the first ground.

$220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 51 Comments on $220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.
What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.
Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.
The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).

More on ICBC Tort Claims and Pre-Existing Injuries

Written by admin on . Posted in Uncategorized.

How is a claim for compensation affected if you suffer from pre-existing injuries and as a result of the fault of another have your injuries aggravated?  If your injuries would have deteriorated eventually without the intervening event your claim for damages can be adjusted accordingly.  This is sometimes referred to as the ‘crumbling skull’ principle and reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, applying this point of law.
In today’s case (Jopling v. Bradowich) the Plaintiff was injured in a 2004 BC Car Crash.  The Plaintiff’s accident related injuries included headaches, disturbed sleep, depression and chronic pain.  However, the Plaintiff suffered from pre-existing problems which were summarized by Mr. Justice Rice as follows: “ I am satisfied that the plaintiff suffered from pre-existing injuries to her lower back prior to the motor vehicle accident, and that there was a general degeneration of her spine, all of which were likely to lead her to the condition that she now experiences, although probably not as soon as it did because of the accident.”
The Court valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $75,000 but then reduced this award by 20% to ‘reflect the contingencies that her back and shoulder pain would have manifested regardless of the accident‘.
In reaching this conclusion Mr. Justice Rice made the following observations of the law of causation in BC personal injury claims:

29] The principal issue in this action is whether the plaintiff’s individual injuries were caused by the accident, or whether they were only aggravations of pre-existing injuries.

[30] Proof of causation is determined by the “but for” test: Athey v. Leonati, [1996] 3 S.C.R. 458, at para. 14; Hanke v. Resurfice, 2007 SCC 7, [2007] 1 S.C.R. 333, at para. 21). If I find that “but for” the defendant’s conduct the plaintiff would not have been injured, then the defendant is liable for all the damages flowing from those injuries.  If the conduct of the defendant is unrelated to the alleged loss, then the defendant is not liable.

[31] It is no answer to a plaintiff’s claim for damages that he or she would have suffered less injury or no injury at all had he or she been less susceptible.  If an individual has a pre-existing condition, the person who injures that individual must take him or her as found: Athey, at para. 34.

[32] However, if the plaintiff’s injuries would have manifested themselves on their own in the future regardless of the defendant’s conduct, the court must apply a contingency factor to address that possibility.  Such a contingency does not have to be proven to a certainty.  Rather, it should be given weight according to its relative likelihood: Athey, at para. 35.

More on BC Personal Injury Claims and the Duty to Mitigate

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.

If you advance a BC Personal Injury Claim (a tort claim) the courts impose a duty on Plaintiffs to mitigate their losses.  What this means is a Plaintiff must take reasonable steps to minimize their losses.  If a Plaintiff unreasonably fails to follow medical advice or fails to return to work in a timely fashion despite being physically able to do so the court may reduce damages accordingly.
Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, demonstrating this legal principle.
In today’s case (Leung v. Foo) the Plaintiff was injured when travelling as a passenger in a single vehicle collision.   Fault was admitted by the driver of the Plaintiff’s vehicle.   The Plaintiff sustained ‘moderate soft tissue injuries’ and a disc herniation as a result of this collision.   Mr. Justice Cohen valued the Plaintiff’s non-pecuniary loss (pain and suffering) at $65,000 and then reduced these damages by 10% due to the Plaintiff’s ‘failure to mitigate ‘.  The Court summarized and applied this area of law as follows:

[112] The defendants submit that any award of damages should be reduced to reflect the plaintiff’s failure to mitigate through her delay in seeking psychological assistance, her refusal to participate in physiotherapy, her being discharged from CBI, and her failure to pursue an active exercise program in the face of medical advice to do so.

[113] Damages are not recoverable for any loss that a claimant ought to have avoided.  A claimant has a duty to mitigate losses, which includes taking all reasonable steps to minimize any loss that results from an injury, and bars a claimant from claiming any part of the damages that can be attributed to his or her neglect to take such steps.

[114] Mitigation limits recovery based on an unreasonable failure of the injured party to take reasonable steps to limit his or her loss.  A plaintiff in a personal injury action has a positive duty to mitigate, though the onus of proof on this issue rests with the defendant.  See: Graham v. Rogers, 2001 BCCA 432, leave to appeal dismissed, [2001] S.C.C.A. No. 467.

[115] In Maslen v. Rubenstein, at para. 11, the Court of Appeal held that where the court finds that injury has been suffered and mitigation issues are raised, the court must decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem or could in future overcome it.  The advice might, for instance, be to eliminate treatment, make “lifestyle changes” or adopt psychotherapy, physiotherapy or an exercise regimen.  Where appropriate remedial measures would resolve the problem, damages can be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

[116] Failure to follow a recommended exercise program commonly results in a reduction in damages for the plaintiff’s failure to mitigate.

[117] The defendants submit that the plaintiff has not given a satisfactory explanation as to why she did not exercise.  In addition, the plaintiff would have the Court accept that she did not seek the assistance of a psychologist because she lacked the sophistication necessary to do so in the face of her perception that Dr. Leung refused to give her a referral.

[118] The defendants submit that the plaintiff’s actions do not suggest a woman incapable of securing her own treatment.  On the contrary, the plaintiff took several proactive steps in relation to the treatment of her injuries.  The plaintiff found another GP in Dr. Wong, having lost faith in Dr. Leung; arranged her own massage and chiropractic treatments; discontinued physiotherapy; and decided against the steroid injections suggested by Dr. Adrian.

[119] The defendants also say that it is clear that counselling was discussed with the plaintiff in March 2008 by Dr. Wong.  Yet the plaintiff did not see Dr. Jung until September 2008, approximately six months later.  This is not evidence of a person anxious to obtain psychological treatment.  Rather, such delay and ambivalence is consistent with a person who was told that psychological treatment was recommended in 2006 (via Dr. Leung’s May 2nd medical-legal report) but failed to take any immediate steps in that regard.  The plaintiff herself admitted that she did not pursue psychological treatment or start an exercise regimen because she was too busy with work.  She gave the same reason for missing appointments with CBI.

[120] The defendants submit that plaintiff’s decisions to not pursue treatment may well have delayed or prevented the improvement of her symptoms, a state of affairs for which the defendants should not be held responsible.

[121] I agree with the defence position on mitigation and find that the plaintiff’s failure to mitigate resulted in an extension of her recovery beyond that considered reasonable for her injuries, and that the plaintiff’s general damages award should be reduced by 10%.

ICBC Claims, Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on ICBC Claims, Soft Tissue Injuries and Credibility

Soft tissue injuries without objective signs are some of the most frequently litigated claims.  One of the reasons why is because credibility plays a vital role in these claims and ICBC often challenges the credibility of Plaintiff’s alleging such injuries.
Reasons for judgement were released on Friday by the BC Supreme Court, Vancouver Registry, dealing with just such a claim.  In Friday’s case (Tayler v. Loney) the Plaintiff was involved in a 2005 BC Car Crash.  Her injuries included soft tissue injury to her neck and back.  These injuries unfortunately continued to linger for many years.  By the time of trial the Plaintiff’s pain was ongoing.  ICBC’s response to this was that the Plaintiff was no longer injured and was simply ‘lying to the court’.
Mr. Justice Grauer rejected ICBC’s position and accepted that she indeed did suffer injuries in the car crash which continued to bother her to the time of trial.  Damages of $42,500 were awarded for the Plaintiff’s non-pecuniary loss (pain and suffering).  Since ICBC put the Plaintiff’s credibility squarely in issue the court had to address this head on.  In doing so the court engaged in a thoughtful discussion about credibility in ICBC injury claims where there is no objective sign of injury.  Mr. Justice Grauer summarized and applied this area of law as follows:

[65] While I have found that the plaintiff is in fact experiencing what she says she is experiencing, I also accept the weight of the medical opinion that there is no objective evidence of ongoing soft tissue injury.  In these circumstances, it is helpful to turn for guidance to the authorities to which counsel referred me, always remembering that each case turns on its own unique facts.

[66] In Butler v. Blaylock (7 October 1980), Vancouver Reg. No. B781505 (S.C.), McEachern C.J.S.C. (as he then was) remarked as follows:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by the wrongdoer.  But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[67] Counsel for the defendant relied in particular on the judgment of Taylor J.A. for the Court of Appeal in Maslen v. Rubenstein (8 September 1993), Victoria Reg. No. V01071 (C.A.), where the court was concerned with:

… those post-traumatic phenomena – sometimes identified with and sometimes distinguished from conditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoform pain disorder” – which involve continued suffering in accident victims after their physical injuries have healed.

[68] At paras. 8-12, Taylor J.A. went on to describe the basic principles applicable to these “difficult cases”:

To meet the onus which lies on the plaintiff in the case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiff must, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

If psychological problems exist, or continue, because the plaintiff for some reason wishes  to have them, or does not wish them to end, their existence or continuation must, in my view, be said to have a subjective, or internal, cause.  To show that the cause lies in an unlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative.  The resolution of this issue will not involve considerations of mitigation, or lack of mitigation.  To hold otherwise, that is to say to place on the defendant the onus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be to require that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose on defendants a heavy and unjustifiable burden.  If the court could not say whether the plaintiff really desired to be free of the psychological problem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation.

Any question of mitigation, or failure to mitigate, arises only after causation has thus been established.

Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which the plaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it….  Where appropriate remediable measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence in the case, and it is for this reason that I find little guidance in many of the decisions cited.

[69] Plaintiff’s counsel relied heavily on the judgment of Spencer J. In Netter v. Baas (14 February 1995), Vancouver Reg. No. B930557 (S.C.), where the learned judge commented as follows:

Over the ensuing 33 months, no doctors save one, has been able to find a satisfactory objective cause for [the plaintiff’s] continuing pain related to this accident.  All the doctors who filed reports agree that he suffered soft tissue injury and resulting pain, but none explains why the pain should have been so severe and lasted so long.  This is the classic case of the plaintiff without objective symptoms who claims an almost total disability from his former physical occupations….

Such cases invite skepticism on the part of the defendant who is asked to pay for such an extreme result.  But this is a plaintiff who claims a formerly very physical lifestyle in the outdoors.  Although he worked in a sawmill in town for the year preceding the accident, much of his life to age 37 had been spent outdoors as a driller-blaster, a prospector and part-time farmer.  His hobbies involve the outdoors too, camping, canoeing, hiking and fishing.  Some of the doctors who examined him remarked upon his strength and build.  Would such a person willingly abandon the lifestyle he had previously embraced for the sake of the chance of an exaggerated accident claim?  There are cases where plaintiffs have done that but generally there is evidence from which that can be determined.  No evidence was called to challenge the accuracy of this evidence about his previous lifestyle.

[70] Turning to the present case, there is, as I have noted, no doubt that the plaintiff suffered soft tissue injuries to her neck, shoulders, upper and lower back, causing pain, headaches and disability.  I have also found that although she genuinely continues to experience pain and disability, there is no objective evidence of continuing injury.  There is no muscle-wasting, atrophy or limitation of motion, and she has been observed to be capable of spontaneous movements inconsistent with continuing physical injury.

[71] What, then, is the explanation for the delay in the plaintiff’s recovery?  On the evidence before me, I conclude that the answer lies in a combination of factors, identified by both Dr. Yuzak and Dr. Teal, although in different ways.  Dr. Teal described it as a psychological predisposition to the effects of trauma, noting her five previous motor vehicle accidents, and her profession.  Dr. Yuzak referred to the three complicating factors of her five previous accidents, her status as a health practitioner, and an environment that was not conducive to healing.  I find that all of these have played a part, and explain why the plaintiff has not recovered as one might otherwise have expected.

[72] I do not consider that this psychological and circumstantial predisposition has a subjective, or internal, cause in the sense of being the plaintiff’s own choice, as discussed in the Maslencase.  Rather, it is the effect of the defendant’s unlawful conduct upon the plaintiff’s pre-existing state that has resulted in the circumstances in which the plaintiff now finds herself, subject to the issue of mitigation.  I do not accept that the stresses in the plaintiff’s life since the accident constitute a novus actus interveniens, as submitted by the defendant.  Those stresses are of the sort that many people experience, and but for her injuries, would not in my view have caused the plaintiff any loss.

[73] Accordingly, I find that the plaintiff has established that her ongoing state of experiencing pain and disability was caused by the defendant’s negligence.

Can a BC Resident Injured Abroad Sue for Damages in British Columbia?

Written by admin on . Posted in Civil Procedure, Uncategorized. 55 Comments on Can a BC Resident Injured Abroad Sue for Damages in British Columbia?

The answer is contained in the Court Jurisdiction and Proceedings Transfer Act and today reasons for Judgement were released by the BC Supreme Court, New Westminster Registry, dealing with this issue.
In today’s case (Roed v. Scheffler) the Plaintiff was injured on June 25, 2006 in Washington State as a result of the alleged negligence of 2 Washington State Residents or in the alternative John Doe or ICBC pursuant to the Insurance (Vehicle) Act’s unidentified motorist provisions.
The Plaintiff, a BC Resident, brought her tort claim for damages in the BC Supreme Court.  The defendants challenged the courts jurisdiction to hear the case a brought a motion to dismiss the lawsuit.
Madam Justice Bruce of the BC Supreme Court granted the defendants motion and in staying the lawsuit the court summarized and applied the law as follows:
[38] Certainly the fact Ms. Roed continued to suffer from her injuries in British Columbia and sought treatment here are “facts upon which the proceeding against the [defendants] is based.” Clearly, the continuing harm caused by the negligence of the defendants will form a significant part of Ms. Roed’s claim for non-pecuniary damages.

[39] Are these connections to British Columbia sufficient to meet the real and substantial connection test? The only similar case cited by Ms. Roed where the court assumed jurisdiction isMuscutt. However, based on the discussion in that case, it is doubtful that the Ontario Court of Appeal would have taken jurisdiction on the facts of the case before me. In particular, Sharpe J.A. found that the nature and extent of the damages suffered by the plaintiff within the jurisdiction was a factor and that, unless it was significant, the court should decline jurisdiction: Muscutt at para. 79. In this case, apart from providing a list of medical practitioners she has seen, Ms. Roed does not describe the nature of her injuries or the treatment she has undergone. Further, Ms. Roed deposes that she has suffered a loss of income but does not quantify it.

[40] There are other factors that were found significant in Muscutt that are missing in this case:

1.         The defendants were engaged in business activities that involved an inherent risk of harm to extra-provincial parties. The plaintiff was struck by a commercial vehicle and this vehicle was subsequently struck by an ambulance. The defendants were apparently insured against suits in all Canadian provinces.

2.         The accident occurred in another Canadian province where the enforcement and recognition of an Ontario judgment would not be an issue. In addition, fairness to the defendant is not a concern because the same test of real and substantial connection applies throughout the country. For this reason, Sharpe J. A. concluded that there is generally a more lenient approach to assuming jurisdiction in interprovincial cases as opposed to international actions: Muscutt at paras. 95-99.

[41] In contrast, cases involving defendants from other countries pose more difficult jurisdictional issues. Because enforcement of the judgment in the foreign jurisdiction is a factor to consider in the real and substantial connection test, the approach to jurisdiction taken by the foreign country when the connecting factor is the location of damages is a relevant concern. Of significance to the case at hand, Sharpe J.A. refers to the law in the United States on this issue at para. 105 of Muscutt:

By contrast, in other countries, it appears that damage sustained within the jurisdiction is only accepted as a basis for assumed jurisdiction in certain limited circumstances. As discussed above, in the United States, the minimum contacts doctrine requires an act or conduct on the part of the defendant that amounts to personal subjection to the jurisdiction. Without more, damage sustained in the jurisdiction does not satisfy the doctrine.

[42] The constitutional limits on the reach of provincial legislation were expressly addressed in Muscutt by incorporating into the real and substantial connection test the concepts of fairness (toward the foreign defendant) and jurisdictional restraint in the application of the test. While the language of s. 3(e) of the Court Jurisdiction and Proceedings Transfer Act does not appear to expressly incorporate these concepts, the court must interpret and apply this provision consistent with the constitutional limits on provincial legislation both inter-provincially and internationally. The discussion contained in Muscutt underlines the risks inherent in a decision to take jurisdiction without due consideration of the international aspects of the proceedings. Specifically, if the court takes jurisdiction based upon a broad application of the test, and one inconsistent with the laws in the foreign jurisdiction, the judgment may not be enforceable in the foreign jurisdiction where the defendant resides.

[43] Turning to the facts of the case before me, I find the plaintiff has failed to satisfy the test for territorial competence articulated in s. 3 (e) of the Act. I find the fact that the plaintiff continues to suffer damages in British Columbia insufficient to establish a real and substantial connection on its own.  These damages are suffered in British Columbia purely as a result of the plaintiff’s residence here. To find a real and substantial connection based on these facts would be to effectively base jurisdiction entirely on the plaintiff’s residence. As set out above, it is well established that a plaintiff’s residence is not sufficient grounds for a territorial competence.

[44] In my view, the reference to “damages” as a factor favouring jurisdiction simpliciter in Jordan and the test articulated in Morguard are directed at the place in which the injury actually occurs rather than the place where the plaintiff continues to experience pain and suffering or economic loss. While the latter circumstances are important, there must be something more to establish a real and substantial connection between BC and the facts upon which the action is based.

[45] This not a situation where the competing jurisdiction is another Canadian province in which case a more lenient standard may apply. Comity requires the court to consider the standards of jurisdiction, recognition and enforcement that prevail in the foreign state when applying the real and substantial connection test.

CONCLUSION

[46] For these reasons, I find the Supreme Court of British Columbia lacks territorial competence over the defendant Ms. Scheffler. The plaintiff’s action against Ms. Scheffler is stayed pursuant to Rule 14(6)(a).

[47] Ms. Scheffler is entitled to party and party costs at scale B.

BC Injury Claims, Expert Evidence and The Duty to the Court

Written by admin on . Posted in Civil Procedure, ICBC Ankle Injury Cases, ICBC Knee Injury Cases, Uncategorized.

One of the Rules regarding the conduct of expert witnesses in the BC Supreme Court is that they owe a duty to the court to be ‘independent’ and ‘unbiased’ in their opinions.  If experts fail to discharge this duty their evidence can be given little weight or even held inadmissible.
Reasons for judgement were released today by the BC Supreme Court demonstrating this principle of law.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a 2005 motorcycle accident when a left turning driver proceeded in front of the Plaintiff in an intersection in Maple Ridge, BC.  The defendant was found fully liable for this collision (the case contains a good discussion of the duties of left turning motorists and is worth reviewing for anyone interested in this area of the law).
The Plaintiff suffered significant fractures of his tibia and fibula which required surgical intervention.  Damages of over $560,000 were awarded including $125,000 for non-pecuniary damages (pain and suffering) for the injuries which were summarized by Madam Justice Allan as follows:

[41] Mr. Rizzolo`s altered position, arising from the Accident caused by the defendant’s negligence, is characterized by continuing pain, changed mood, loss of ability to work effectively and happily, and a much-reduced capacity to engage in recreational sports.  He must take pain killers and anti-inflammatories although they upset his stomach, requiring him to take additional medication.

[42] At present, Mr. Rizzolo experiences constant pain in his left ankle, which is exacerbated by his work activities.  His left foot swells and he experiences occasional pain in his left knee.  He limps when he is tired or in severe pain.  He takes the following medication: Advil once or twice a week for pain management; Celebrex, an anti-inflammatory, daily; and amitriptylene, an antidepressant, twice a week to help him sleep.  He receives periodic cortisone injections from Dr. Dhawan.

[43] Mr. Rizzolo’s injuries are permanent and they affect his entire life – his job, his recreational and family life, and his sense of well-being.  I do not find that he exaggerated his symptoms and he is highly motivated to be as active as possible.

In advancing his claim the Plaintiff called evidence of an expert witness, an occupational therapist, who had conducted a functional capacity evaluation of the Plaintiff to assist the court in determining a fair award for cost of future care.  The expert employed a ‘unique motion capture system known as the Functional Assessment of Biomechanics System [FAB] to measure biomechanical forces.’  In cross examination evidence came out that this expert was ‘an inventor of FAB‘.  Having this fact revealed in cross examination (as opposed to being revealed up front) appaears to have caused the presiding judge to reject all the evidence of this expert.

In rejecting the evidence of this occupational therapist Madam Justice Allan summarized and applied the law of objectivity of expert witnesses as follows:

[104] In R. v. Mohan, [1994] 2 S.C.R. 9, the Court reiterated that expert witnesses have duties and responsibilities.  In particular, an expert witness is expected to provide an independent, unbiased opinion that is adequately researched and falls within his or her ambit of experience.

[105] I consider Mr. McNeil’s failure to disclose the fact that he is the principal of Biosyn and that he was an inventor of FAB to represent a shocking lack of candour.  As he has testified in the courts on numerous occasions, he is well aware that the duty of an expert is to assist the court with an independent and objective opinion on a particular issue.  To withhold such relevant information misleads the court and, as I have no choice but to reject all of his written and verbal evidence, constitutes a substantial waste of time.   It is impossible to parse out Mr. McNeil’s evidence as a qualified expert from that as an undisclosed salesman for Biosyn.

[106] I do not fault counsel for the plaintiff as I accept Mr. Kazimirski’s statement that he was unaware of Mr. McNeil’s association with Biosyn before Mr. Joudrey’s cross-examination.  While the plaintiff will be entitled to his costs in the result, he may not claim any costs relating to Mr. McNeil’s reports or attendance in court.  Counsel may address the issue of whether the defence is entitled to costs for two days of trial.

$70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Written by admin on . Posted in ICBC Knee Injury Cases, Uncategorized. 60 Comments on $70,000 Non-Pecuniary Damages Awarded for Patellafemoral Pain Syndrome

Reasons for judgment were released yesterday (Fortin v. Cousins) by the BC Supreme Court awarding a Plaintiff just over $300,000 in damages as a result of a 2004 BC Car Crash.
The Plaintiff’s main injury involved his knees and was described by his orthopaedic surgeon as follows:
In the motor vehicle accident of March 28, 2004, Mr. Fortin’s principal injury for which there are ongoing symptoms is contusion of the right and left knees.  It is the writer’s opinion that Mr. Fortin must have sustained anterior blunt trauma to the right and left knees.  He presents with ongoing symptoms consistent with patellofemoral degeneration.

Currently, the discomfort in the right and left knees related to presumed chondromalacia patellae (post traumatic), is not impairing Mr. Fortin in his work.  He obviously is very happy about his present employment.  He has aspirations to, at some time, own his own company and not have to do hands on work.  It is the writer’s opinion that if Mr. Fortin continues in his current occupation long term as a pipefitter, he will experience progressive problems with the right and left knee.

I reviewed with Mr. Fortin the job requirements of a pipefitter in stainless steel.  The requirements are obviously quite rigorous and all his co-workers have musculoskeletal complaints related to the occupation.

The writer does not anticipate there will be spontaneous improvement in the complaints referable to the right and left knee.  Currently, Mr. Fortin is following instructions with regard to the protection of his knees throughout the course of his activities as a pipefitter.

The long term prognosis is guarded if Mr. Fortin remains in precisely his current role as a pipefitter.  One could anticipate that in 10 to 20 years in this particular occupation, he might become disabled for (sic) continuing on.  At the present time there are no operative interventions which would prolong the life of either the right or the left knee.  Mr. Fortin is already making plans to attempt to advance to a supervisory position and eventually, to be an independent contractor of a pipefitting company.  Were Mr. Fortin to follow this career path, it is in the writer’s opinion that his knees would not be a barrier to his future employment.

In valuing the Plaintiff’s non-pecuniary damages (pain and suffering) at $70,000 Mr. Justice Harvey noted the following:

49] The purpose of non-pecuniary damage awards is “to compensate the plaintiff for pain, suffering, loss of enjoyment of life and loss of amenities”: Jackson v. Lai, 2007 BCSC 1023 at ¶134; see also Andrews v. Grand & Toy Alberta Ltd., [1978] 2 S.C.R. 229 at 260-265; and Kuskis v. Hon Tin, 2008 BCSC 862 at ¶135.  While each award must be made with reference to the particular circumstances and facts of the case, other cases may serve as guides to assist the court in arriving at an award that is just and fair to both parties: Kuskis at ¶136.

[50] Russell J. discussed this process in Hoang v. Smith Industries Ltd. et al., 2009 BCSC 275 at ¶33:

There are a number of factors that courts must take into account when assessing this type of claim.  Justice Kirkpatrick, writing for the majority, in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19, outlines the factors to consider, at para. 46:

The inexhaustive list of common factors cited in Boyd [Boyd v. Harris, 2004 BCCA 146] that influence an award of non-pecuniary damages includes:

(a)        age of the plaintiff;

(b)        nature of the injury;

(c)        severity and duration of pain;

(d)        disability;

(e)        emotional suffering; and

(f)        loss or impairment of life;

I would add the following factors, although they may arguably be subsumed in the above list:

(g)        impairment of family, marital and social relationships;

(h)        impairment of physical and mental abilities;

(i)         loss of lifestyle; and

(j)         the plaintiff’s stoicism (as a factor that should not, generally speaking, penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.))

[51] Here, Mr. Fortin has suffered significant injuries as a result of a horrific accident.  Happily, with the exception of the problem with his knees, which is permanent, his other complaints resolved over time.  Approximately one year following the accident, Mr. Fortin’s other injuries had resolved and no longer were interfering with either his employment or his enjoyment of life.

[52] His knee symptoms, although mild at present, will create ongoing problems for him both in his vocational and recreational pursuits.  The more he is obliged to work “on the tools”, the greater the interference with both.

[53] Counsel for the plaintiff suggests an award of $90,000 to $100,000 for non-pecuniary loss.  Counsel for the defendant distinguishes the authorities relied upon for the plaintiff and suggests, instead, a range of $30,000 to $45,000, noting, amongst other things, that there has been no surgery to the plaintiff’s knees nor is it anticipated that such will occur in the future.

[54] Both counsel cited Gernitz v. Mowat, 1992 CarswellBC 2460 (S.C.) [Gernitz], presumably because the facts there were remarkably similar to the facts in this case but for the plaintiff’s age.  In Gernitz, the award for non-pecuniary loss was $35,000.  Counsel agreed that grossing up the award from 1992 to present day value results in an award of approximately $47,000.

[55] The major distinguishing factor in Gernitz was the age of the plaintiff who was 56 at the time of trial.  Here the plaintiff is 27 and will be subject to a much longer period of pain and restriction in his social pursuits.  Accordingly, having regard to all of the authorities cited by counsel on the question of non-pecuniary damages, I award the sum of $70,000 under this heading of loss.