Author: admin

No Costs Consequences With Formal Offer Bested by "Almost Negligible Difference"

Written by admin on December 15, 2015. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.
In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages. Prior to trial the Defendant issued a formal settlement offer of $93,500. The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial. In reaching this decision Madam Justice Baker provided the following reasons:

[13] While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test. Rule 9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.

[14] Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future. While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed. I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.

[15] Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.

$3 Million "Diminished Capacity" Award For Brain Injured Teen Who Planned on Being Engineer

Written by admin on December 15, 2015. Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.
In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant. The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.
The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer. In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:
[197] I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198] While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199] Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200] There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201] Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202] I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life. He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203] Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204] The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.

No Medical Report Thwarts Request for Second Defence Medical Exam

Written by admin on December 15, 2015. Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.
In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant. No report was produced following this assessment and the Defendant requested a further a exam with a neurologist. In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field. Master Harper provided the following reasons:

[6] The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6] It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7] Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8] So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.

$140,000 Non-Pecuniary Assessment for Chronic Dizziness and Imbalance

Written by admin on December 14, 2015. Posted in ICBC Dizziness Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for symptoms of chronic dizziness and imbalance following a vehicle collision.
In today’s case (Kijowski v. Scott) the Plaintiff was involved in a 2011 collision caused by the Defendant. The Plaintiff suffered various soft tissue injuries and also suffered from chronic dizziness and imbalance issues. These were expected to be permanent. In assessing non-pecuniary damages at $140,000 Mr. Justice Greyell provided the following reasons:

[128] In my view Mr. Kijowski’s injuries are considerably more significant that those sustained by the plaintiffs in the cases referred to by the defendants. As a result of his injuries, Mr. Kijowski’s life has been significantly altered in many respects: recreationally, at work, and at home. He can no longer enjoy the activities he did in the past and the prognosis for his improvement is guarded. Dr. Longridge has opined Mr. Kijowski’s dizziness and imbalance will be permanent impairments and he will have to continue with vestibular therapy indefinitely to improve his ability to function with these conditions or he will likely relapse. As he ages, he will more prone to falling and injuring himself. He has a hearing deficit as a result of damage to the cochlea which likely can be improved with binaural amplification (hearing aids). Mr. Kijowski continues to suffer from soft tissue injuries to his neck, mid and lower back which will likely improve over time with treatment. His tinnitus and hearing deficit have resulted in stress in his relationships at home. His ability to concentrate and his energy is decreased and he worries about the security of his job and the consequences that would have on his family.

[129] After considering all the factors set out in Stapley I am of the view the appropriate amount of non-pecuniary damages is $140,000.

"Late" Formal Offer Beat by 9% Triggers Double Costs

Written by admin on December 14, 2015. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, finding a formal offer that was bested by 9% and was delivered a few days prior to trial was capable of triggering double costs.
In today’s case (Kostinuk v. Fellowes) the Plaintiff was involved in a personal injury prosecution and issued a formal offer to settle his claim, three days before trial, for $175,000. After a 6 day trial judgement of $192,345 was obtained.
The Defendant argued, among other things, that no post offer double costs should be awarded as the offer was issued too late. In rejecting this argument and awarding double costs Madam Justice Brown provided the following reasons:

[10] Reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to being simply a nuisance offer) and whether it could be easily evaluated and whether some rationale for the offer was provided (Hartshorne v. Hartshorne, 2011 BCCA 29 at para.27). Here, although the offer was delivered on the Friday before the commencement of trial, there was an adequate period of time within which to evaluate the offer. As the plaintiff submits, by that point in time all of the evidence was available to the party. They had exchanged earlier offers. Discoveries were complete, expert opinions available. The defence would have been well able to assess the offer in the time available to it. Moreover, the plaintiff had provided an explanation that followed the offer within a few hours. The offer was within the range of likely outcomes. In the circumstances, the defendant would be able to assess the reasonableness of the offer and make a decision on it.

[11] The judgment was $192,354.05 (including gross wage loss) as such, the offer is just slightly below the amount awarded by the court.

[12] I do not have information as to the arrangements between the plaintiff and his counsel. Accordingly, I cannot assess the relative positions of the parties and their ability to finance the trial.

[13] The other factor which I consider appropriate in this particular case is that the defence was conducted by the insurer who was well able to assess the risks of proceeding to trial. The insurer did so knowing that it could be exposed to an award of double costs should Mr. Kostinuk succeed.

[14] In my view, having considered all of the factors, it is appropriate that the defendant pay the plaintiff costs at Scale B for the steps taken up to and including the date the plaintiff served the formal offer to settle with double costs thereafter, excluding disbursements which will be at the normal rate.

Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

Written by admin on December 8, 2015. Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.
In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages. The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.
The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible. In ordering production Master Muir provided the following reasons:

[25] I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26] The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27] In Dholliwar, Master Scarth held:

[26] It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27] In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28] Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.

Medico-Legal Expert Criticized for Destroying Digital Recording of IME Before Trial

Written by admin on December 8, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, criticizing an expert for destroying digitally recorded observations made during an independent medical assessment.
In today’s case (Birkich v. Canatio) the Plaintiff, involved in a personal injury prosecution, was examined by a physiatrist who authored a report for trial. Prior to testifying the physician destroyed digitally recorded observations of the examination. The Defense objected to the report from being admitted but the Court reluctantly allowed the report into evidence based on the fact that the physician explained the report accurately transcribed what was digitally recorded. In criticizing this practice Mr. Justice Betton provided the following reasons:

[10] Given the evidence that I do have on this voir dire, specifically from Dr. Apel, that this is a verbatim transcription (with only the editing that I have described) of what was on the now destroyed digital recording, I am not inclined to grant the defence application to not allow the report. Whether, and to what extent, the examination of Dr. Apel will affect my ultimate conclusion about the weight of her opinions is yet to be determined, but I do not want there to be any illusion that this in any way endorses the practice that Dr. Apel undertook in this case or, from her evidence, what has gone on for some 20 years. It is wrong, it is not in compliance with theRules, it is not to be endorsed, and this decision should not in any way be seen as endorsing that.

[11] I am going to direct as part of my order here that, at the plaintiff’s expense, a transcript of my decision on this voir dire be prepared and a copy of it be provided to Dr. Apel. To the extent issues of this nature might arise in the future, in respect of Dr. Apel at least, this decision may be brought to the attention of a court dealing with issues on those occasions such that it would be considered in any decision that might be made about future reports. If there is, not that I think that there should be, but if there is any misapprehension or confusion among the bar about the nature of instruction letters and what experts should be informed of, I would hope that this decision might, in some measure, resolve that because it is simply unacceptable. It is an easy process in this digital age for that information to be retained, it is abundantly clear from the Rules what the intention is, and to be faced with these sort of issues, in my view, is something that simply should not be occurring.

Expert Who "Did Not Meet With, Examine Or Interview" Plaintiff Given Zero Weight

Written by admin on December 1, 2015. Posted in Uncategorized.

In the latest case (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.
In criticizing this practice Mr. Justice Parrett provided the following comments:

[125] The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126] Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127] Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128] These documents and that information included clinical records of various medical professionals.

[129] This is a process that is unlikely to assist the court in any material way. The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130] This is a trend that appears to have been of relatively recent origin.

[131] It is also a trend which has drawn adverse comment from judges of this court. Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132] To these I would add my own comments. Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it. He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133] Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay. Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134] Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135] The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136] Under the terms of that agreement the use of documents in general, which includes clinical records, is limited. Paragraph 2 and 5 of that document are particularly notable.

[137] In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138] It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.

Insurance Giant Argues Former In House Lawyer Cannot Act for Plaintiff Suing Them

Written by admin on December 1, 2015. Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing arguments by the Manufacturer’s Life Insurance Company attempting to have a former in-house lawyer of theirs acting as plaintiff counsel in a breach of contract claim against them.
In today’s case (McMyn v. Manufacturer’s Life Insurance Company) the insurer argued that, as a former in-house lawyer, Plaintiff’s counsel had knowledge of their “business practices, litigation strategies, insurance policies and certain claims personnel” and it would be unfair to allow him to now use this knowledge against them.
In dismissing the application Mr. Justice Myers provided the following reasons:

[32] With respect to the claim for LTD benefits, it is up to the plaintiff to show that she fell within the terms of the policy. The terms of the policy are certainly not secret. It cannot be argued or assumed that Manulife has some secret interpretation of the policy that Mr. Fishman has knowledge of. It is hard to see that knowledge of the claims people would have any effect on Mr. Fishman’s train of inquiry on that issue, including the handling of examinations for discovery. As in most LTD claims the real issue will no doubt be – and no one argued otherwise – Ms. McMyn’s medical condition and how that fits into the wording of the policy.

[33] With respect to the bad faith claim, the plaintiff must show a failure of Manulife to act with reasonable promptness or a failure to deal with the insured fairly: 702535 Ontario Inc. v. Non-Marine Underwriters, Lloyd’s London, England, [2000] O.J. No. 866 (Ont. C.A.). That will obviously depend on the way this claim was handled based on the evidence in this case. Knowledge of how the claims people may have handled past claims will be of little or no assistance.

[34] Manulife argued that Mr. Fishman has insight into how the claims people or Mr. Lizé perform in examinations for discovery. That might be true. But it must be put into perspective. First, in terms of witnesses selected for examination for discovery or at trial, the relevant witnesses are those that have familiarity with the facts of the claim. That is something that any lawyer would be able to ascertain through document discovery or interrogatories. Mr. Fishman has no inside knowledge of that because he was not at Manulife when the plaintiff filed her claim.

[35] Knowledge of how Manulife personnel perform in examinations for discovery might provide a minor advantage. But any lawyer who had previously done an examination for discovery or cross-examination in trial of that witness would also have that insight. It is to be borne in mind that Manulife as a major LTD insurer in Canada is an institutional litigator. This is not a one-off claim being made against it. Any lawyer specialising in LTD claims would be expected to act against Manulife multiple times and most likely come up against the same Manulife personnel.

[36] Insofar as Mr. Fishman being aware of Manulife’s claims handling procedures, once again he has been gone from the company for over two years. The issue will be the way this claim is handled. If there are Manulife claims handling manuals their existence will come out in the examinations of discovery conducted by any counsel.

[37] In Sandhu the Court noted, at para. 32, that the approach to this type of application is a “cautious one” and that the court should only interfere in “clear cases”. While the Court of Appeal disqualified the lawyer, this case comes nowhere near to the facts in that case, where the lawyer had knowledge of confidential information pertaining directly to her new client.

[38] Regarding Mr. Fishman having handled bifurcation applications, Manulife said Mr. Fishman is aware of Manulife’s preference for bifurcation of bad faith claims. So would any lawyer who was previously on the receiving end of that type of application from Manulife. In this case, the simple fact is that Manulife will make the application or it will not. I fail to see what confidential strategy could have been involved in bifurcation claims that would give Mr. Fishman an advantage.

[39] Finally, I do not place any significant weight on Mr. Lizé having been appointed as the case manager on this file. He was not appointed until after Manulife knew that Mr. Fishman was acting on the case. Manulife also appointed Mr. Lizé as the case manager on the Galley action. Manulife says it would be inconvenient to appoint another case manager, because they would have to come from out of town for discoveries, trial or meetings. However, for a company the size of Manulife that must be a small consideration.

[40] In Atco, the Court concluded that the case the lawyer was acting on against Atco was sufficiently connected to the work he had done at Atco to raise the rebuttable presumption that he had confidential information pertaining to the new retainer. The connections in that case were more direct than the ones here. In Atco the lawyer knew all of the data and other corporate information relevant to Atco’s rate applications. Here, there is only a general knowledge of claims practices and company personnel.

[41] I conclude that the connections between this case and the work Mr. Fishman did at Manulife are not sufficient to raise the presumption that he had obtained confidential information that could be used in this case.

$120,000 Non-Pecuniary Assessment for Soft Tissue Injuries with Disabling "Pain Disorder"

Written by admin on November 30, 2015. Posted in ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic pain disorder caused by two vehicle collisions.
In today’s case (Litt v. Guo) the Plaintiff was involved in two collisions, the first in 2003, the second in 2010. The Plaintiff was not at fault for either. The Court found both collisions caused various soft tissue injuries which went on to form a chronic pain disorder which was largely disabling for the Plaintiff. In assessing non-pecuniary damages at $120,000 Mr. Justice Schultes provided the following reasons:

[371] In summary, I will make the following findings on causation and the current state of Ms. Litt’s injuries:

· Ms. Litt suffered moderate soft tissue injuries to her neck, shoulders and back in the 2003 and 2010 accidents, which would not have been significantly disabling in themselves.

· Her physical injuries from the 2003 accident had receded to a manageable level by the time of the 2010 accident, but those injuries were aggravated by the 2010 accident.

· Ms. Litt developed a pain disorder as a result of the 2010 accident.

· Ms. Litt’s pre-existing anorexia nervosa and depression made her more vulnerable to developing depression and other psychological difficulties after the 2003 accident and to developing a pain disorder after the 2010 accident.

· Despite the other stressors in her life, Ms. Litt would not have suffered any disabling reappearance of her pre-existing conditions if the accidents had not occurred.

· There is a possibility of a continued improvement to her functioning and her capacity for employment, based on her self-described improvements to her outlook after beginning to follow a regime of healthy diet, exercise and counselling…

[378] Keeping in mind the need to tailor the award to the particular circumstances of the case, but to consider outcomes in similar cases to ensure the overall fairness of the amount, I conclude that damages of $120,000 are appropriate under this heading.

Also of note are the Court’s critical comments of two defence expert witnesses in the case.

The first, a defence expert in ‘spine pain’ testified that soft tissue injuries would certainly have healed within 12-16 weeks of each accident and that this was “scientific fact”. In rejecting this assertion the Court commented as follows –

[349] Turning to the evidence dealing with the extent of Ms. Litt’s physical injuries, I find first of all that I am unable to accept Dr. Bishop’s categorical assertion that the outside limit of the duration of her actual physical injuries is 16 weeks. A comprehensive study that he accepted as authoritative shows that there is a greater variation in that recovery period, before even considering the influence of any psychological problems on the experience of pain. In addition, though through no fault of his own, he has no records and therefore no real evidentiary basis to critique the medical findings that were made by others in relation to Ms. Litt’s 2010 accident. While, as I will discuss, there is a good argument that Ms. Litt’s psychological condition has overtaken any physical causes of her pain, I am not convinced that any contribution by her physical injuries ended as quickly as he contends.

Next, the Court heard from a defence hired psychiatrist who minimized the connection between the Plaintiff’s chronic pain condition and the collisions. In rejecting this evidence Mr. Justice Shultz provided the following critical comments-

[355] I will start by saying that I find I cannot attach any weight to Dr. Levin’s opinion. He conflates the routine nature of the accidents with the requirement for a diagnosis of pain disorder under the DSM-V that the patient experiences the injuries as “significant, catastrophic or life threatening”. Their objective severity aside, Ms. Litt certainly perceives her injuries as being significant. His assertion that there can be no PTSD here because the accidents were not traumatic also ignores that fact that Dr. Lu does not rely on PTSD to support his diagnosis of pain disorder. PTSD is most prominent in Dr. Lee’s records, and I would not give as much weight to his diagnoses in psychiatric matters in any event.

[356] More importantly, Dr. Levin made assumptions that are not borne out by the evidence, such as that Ms. Litt’s function was “seemingly unimpaired” in the years following the accidents, which he seems to have based largely on her continuing ability to take family vacations that involved air travel.

[357] Worst of all in my view, he overlooked or ignored numerous entries in Dr. Lee’s clinical records that had the potential to undermine his opinions. My overall impression was that the primary purpose of his report was to counteract Dr. Lu’s opinion, rather than to address the evidence objectively, and that it was not prepared carefully.