Author: ERIK MAGRAKEN

“Ironic” ICBC Expert Witness Position Criticized by BC Supreme Court

As readers of this blog know the BC Government recently overhauled the Rules of Court to limit the number of expert witnesses that can be used in personal injury prosecutions.  This rule is subject to a constitutional challenge and its future is uncertain.  The rule was implemented with the goal of simply saving ICBC money.

With this background in mind interesting reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, commenting on “ironic” submissions from a Defendant relating to the need for expert evidence.

In today’s case (Sekhon v. Gill) the Plaintiff was involved in three collisions and sued for damages.  Liability was admitted for all three crashes.  In the course of trial the Plaintiff presented various expert evidence.  The Defendant suggested even more experts should have been called by the Plaintiff and requested that an adverse inference be made because the Plaintiff did not call her family physician to testify.

Mr. Justice Smith refused to draw an adverse inference and made the following comments about the “ironic” request by ICBC that a Plaintiff should call more expert evidence when they lobbied for rule changes limiting the rights of litigants regarding expert testimony:

[59]         Based on the evidence in this case and the currently applicable authorities, I find there is no basis on which to draw the adverse inference sought by the defendants.

[60]         There is also a further, emerging reason for the court to be cautious about drawing an adverse inference against any party for failing to call specific or additional medical experts. The Lieutenant Governor in Council has recently enacted Rule 11-8 of the Supreme Court Civil Rules…

[61]         This new rule does not apply to cases coming to trial before December 31, 2019 (see Rule 11-8(11)(a)(ii) of the Supreme Court Civil Rules), so does not directly govern this case. However, it clearly indicates a policy to place limits on the number of experts appearing in these kind of cases and the associated expense to the parties.  The Attorney-General has publicly stated that the rule was introduced as part of an effort to control the Insurance Corporation of British Columbia’s litigation costs.  In the circumstances, it is more than a little ironic to hear defence counsel argue that the plaintiff has failed to call enough experts.

[62]         In Mohamud, Fisher J. referred to a plaintiff being expected to call “all doctors” who attended her for important aspects of her injuries. To the extent that was intended to refer to those doctors being called to give expert opinion, that is an expectation the court will no longer be able to have under the new rule. Indeed, plaintiffs who have been treated by multiple doctors will be prima facie barred from calling all of them as experts, no matter how much assistance they may have to offer the court.

[63]         Where a case requires opinions from specialists who assess the plaintiff for medical legal purposes only, a plaintiff may be barred from introducing any opinions from day-to-day treating physicians. The circumstances in which the court can be asked to draw an adverse inference may therefore become even more limited when the new rule comes into effect.

CBD Oil and Medical Marijuana Costs Recovered in Personal Injury Claim

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for personal injuries which included the successful recovery of money spent for CBD oil and medical marijuana to treat chronic pain.

In today’s case (Culver v. Skrypnyk) the Plaintiff was injured in two collisions.  These resulted in partly disabling chronic back and leg pain.  The treatments attempted over the years included the use of CBD oil and medical marijuana.  The Court awarded recovery for the costs of these medications noting they were reasonably incurred special damages.  In reaching this conclusion Mr. Justice Davies provided the following reasons:

[258]     Mr. Culver incurred the expense of $903.32 for medical marihuana and CBD oil to help with the pain and difficulty with sleeping that he was suffering from because of his injuries. Dr. Burlin suggested that he do so and Mr. Culver reports that he obtained some relief from his use of those products.

[259]     Although I denied Mr. Culver’s claim for purchase of CBD oil as a component of his cost of future care I did so because of Dr. Burlin’s inability to testify as to the future benefits of that product for Mr. Culver’s future care.

[260]     I am satisfied that the lack of proof of medical necessity for future care does not preclude reimbursement of Mr. Culver for the costs incurred by him for medical marihuana and CBD oil as special damages.

[261]     I find that the expenditure of the funds for marihuana and CBD oil at the time those cost were incurred in circumstances in which Dr. Burlin was prepared to suggest the use of those products to assist Mr. Culver’s recovery establishes medical justification. Mr. Culver’s testimony as to the benefits he received from the expense establishes the reasonableness of the expense incurred. I am satisfied that the products would not have been purchased but for the injuries suffered by Mr. Culver as a result of the defendants’ negligence.

[262]     In result I find that Mr. Culver is entitled to reimbursement by the defendants for the special damages he has incurred in the total amount of $18,091.

$200,000 Non-Pecuniary Assessment for Post Concussion Syndrome With Poor Prognosis

Reasons for judgement were published today by the BC Supreme Court, Campbell River Registry, assessing damages for chronic consequences from a head injury.

In today’s case (Mickelson v. Sodomsky) the 50 year old plaintiff was involved in a 2015 T-bone collision.  The Defendant admitted liability.  The crash resulted in a mild traumatic brain injury and the plaintiff developed post concussion syndrome with a poor prognosis for further recovery.  The consequences of the injury were largely disabling.  In assessing non-pecuniary damages at $200,000 Mr. Justice Thompson provided the following reasons:

[35]         I accept the evidence of Dr. Cameron and Dr. Muir that Ms. Mickelson suffered a mild traumatic brain injury in the MVA. She continues to suffer the effects of a post-concussive syndrome. I conclude that she will continue to adapt to these deficits, but the evidence does not make room for any optimism that she will achieve further recovery.

[36]         Over the period of time since the MVA, I am satisfied on the basis of all of the evidence that her cognitive issues have been multi-factorial: I accept that it is difficult to tease out how much of her cognitive difficulties are accounted for by post-concussive syndrome versus depression and anxiety versus chronic pain. That said, as time has gone on, the partial lifting of her depression and the decrease in her pain have not resulted in a significant improvement in cognitive function. This lends weight to Dr. Friesen’s interpretation of the neuropsychological test findings as being consistent with frontal lobe injury.

[37]         I am satisfied on a balance of probabilities that, but for the MVA, Ms. Mickelson would not have the cognitive deficits that partially disable her. I conclude that Ms. Mickelson falls into the 10 to 20 percent of unfortunate people that do not recover from the effects of a mild traumatic brain injury…

[41]         In fixing the amount of non-pecuniary damages in this case, the central consideration is the post-concussive syndrome. It has altered Ms. Mickelson’s previously vibrant personality and stunted her capacity to function at a high level. It has also resulted in termination of her education plans and career plans. Considering all of the Stapley circumstances, and that she has lost a modest amount of her capacity for domestic chores, I assess her non-pecuniary damages at $200,000.

$140,000 Non-Pecuniary Assessment for “Severe” Ankle Fracture

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a severe ankle injury.

In today’s case (Chau v. Pereira) the Plaintiff was struck by a vehicle while walking in a marked crosswalk.  The Defendant denied liability but was found fully responsible at trial.   The crash resulted in a severe ankle injury with post traumatic arthritis that was expected to deteriorate to the likely stage of needing fusion or joint replacement.  In assessing non-pecuniary damages at $140,000 Mr. Justice Baird provided the following reasons:

[15]         The plaintiff’s main medical witness was Kevin Wing, an orthopaedic surgeon. He testified that as a result of the accident the plaintiff suffered a severe fracture of his right ankle, with significant related soft tissue injury. Post-traumatic arthritis has set in, resulting in a restricted range of motion and activity-related ankle pain. According to Dr. Wing this is likely to get worse over time. I have no difficulty accepting this. I am satisfied overall that in the years ahead the plaintiff will likely experience a deterioration in his ankle functioning and will ultimately develop what Dr. Wing called “end stage” or seriously debilitating arthritis in this area of his anatomy.

[16]         According to Dr. Wing, the plaintiff may at some point require ankle fusion or ankle replacement surgery. Either procedure typically requires patients to be off work for six months and undergo several months of therapy and rehabilitation. Dr. Wing predicted that even after such a surgery the plaintiff will most likely continue to suffer from significant disability associated with his badly damaged ankle. Dr. Wing testified that the injury had likely been caused by the infliction of thousands of pounds of force on the ankle. The ankle joint was shattered into pieces. The surrounding soft tissue and ligaments critical to ankle function were badly damaged. He likened the injury to an “explosion”. He confirmed that this is a serious and permanently debilitating injury with obvious implications for the plaintiff’s quality of life and ability to earn an income.

[17]         The plaintiff’s other expert witnesses were Min Kyi, a functional capacity therapy expert who evaluated the plaintiff’s diminished physical abilities, which I have already discussed; and Dr. Roy O’Shaughnessy, a psychiatry expert who testified very briefly about the plaintiff’s problems with anxiety following the collision…

[26]         Having considered these authorities, the Stapley factors, the evidence, the personal circumstances of the plaintiff, and the submissions of counsel, I assess non-pecuniary damages in the amount of $140,000.

$200,000 Non-Pecuniary Assessment For Disabling Chronic Depression and PTSD

Reasons for judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic and disabling psychiatric injuries.

In the recent case (Gill v. Aperdoorn) the Plaintiff was injured in a 2015 collision.  The Defendant admitted liability.  The crash resulted in severe depression and PTSD.  The injuries were disabling and the prognosis for further improvement was not optimistic.  In assessing non-pecuniary damages at $200,000 Madam Justice Gropper provided the following reasons:

[51]         Applying those factors, Mr. Gill is now 49 years old and he has been suffering from his injury for almost four years. The treating doctors and Dr. Tarzwell opine that Mr. Gill’s psychological problems continue and will not be cured. Mr. Gill is isolated from his peers. Mr. Gill’s ambition and drive towards his career goals have dissipated. Mr. Gill’s future career prospects, if there are any, will likely include work that is less challenging, interesting or rewarding for him. Mr. Gill has lost his own sense of self-worth and confidence. Mr. Gill’s degree of emotional suffering has been extreme and reflects a lonely, frustrated, and frightened individual. Mr. Gill’s family, marital and social relationships have been directly impaired, as have his physical and mental abilities. Mr. Gill has completely lost his pre‑accident lifestyle. Mr. Gill is unable to bear his loss stoically.

[52]         The defence argues that the experts have made a positive diagnosis in that the plaintiff can improve and can be rehabilitated to return to his pre-accident employment status. The defence argues that it is probable, although not certain, that Mr. Gill will return to longshoreman’s work.

[53]         The expert opinions are not optimistic about Mr. Gill’s recovery or his return to work. Though the most recent residential treatment program demonstrates some glimmer of hope, it is just that. It is reasonable that Dr. Tarzwell acknowledges Mr. Gill may get better, but he does not suggest that it is likely. That evidence does not meet the balance of probabilities standard.

[56]         Mr. Gill’s physical symptoms have been secondary to his psychological injuries. The psychological injuries have had a devastating impact on every aspect of his life. He was a happy, healthy, ambitious person. He was involved in a loving marriage and had close relationships with both his children. He was pursuing a job that he loved. He enjoyed socializing, he was concerned about his appearance, and he was physically active. His future was bright. That is no longer the case. Mr. Gill is a shadow of his former self. His interaction with his friends and family is non‑existent. The effect of these injuries on his day-to-day functioning is profound. Some of his family, friends, and the experts described that Mr. Gill is unable to even engage in basic health self-care and personal hygiene.

[57]         Mr. Gill has suicidal ideation that manifested itself in his attempt to take his own life in January 2018.

[58]         I have reviewed the authorities provided by the parties. I find the decision of Felix v. Hearne, 2011 BCSC 1236 to be apposite. In that case, the plaintiff suffered from the combined effects of physical injuries along with a “pervasive emotional disorder” that was “devastating to [her] personal and vocational life” (at para. 47). The court found that the plaintiff was no longer self-reliant and could not engage in her pre-accident activities or social life. Non-pecuniary damages were assessed at $200,000.

[59]         I have taken a global approach to non-pecuniary damages and consolidate both Mr. Gill’s physical and psychological injuries in assessing Mr. Gill’s non‑pecuniary damages at $200,000.

Slip and Fall Claim Succeeds After Plaintiff Injured on Wet Boardwalk

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, addressing fault and damages for a fall a Plaintiff sustained while walking on a wet boardwalk.

In today’s case (Owens v. Steveston Waterfront Properties Inc.) the Plaintiff fell and broke her right kneecap in an incident described as follows:

the plaintiff was walking on a part of a boardwalk in Steveson, of which the defendant is the occupier, when she slipped and fell (the “Incident”).  She was walking on the boardwalk after having a meal (a soup and one beer) at the Restaurant.  The plaintiff was 61 years old at the time of the Incident.  She had followed her husband, Mr. Owens, who was also in his sixties, down a ramp with a small incline that was just outside the Restaurant to the boardwalk.  Although the wooden planks of the boardwalk looked dry, she slipped, landing on her knee.  She testified that, had there been a sign warning of a slipping hazard, she would not have tried to walk down the ramp to the boardwalk.

The Court found she fell due to the slipperiness of the boardwalk and that it did not appear wet.  The court noted the Defendant could have placed a warning sign or, at relatively low cost, installed strips to increase the friction for patrons walking on the boardwalk.  In finding the Defendant liable Madam Justice Maisonville provided the following reasons:

[110]     I find that the risk respecting the boardwalk was unreasonable. The defendant has a positive duty to take reasonable care to make the boardwalk safe to be walked on. Although evidence of local practice is not determinative, having considered that occupiers for the neighbouring boardwalks had mounted signs warning of the potential slipping hazard, I am persuaded that the facts that the boardwalk could be slippery when wet and that this wetness would not always be visually noticeable to visitors, amounts to a recognizable risk that required some positive action on the part of the defendant.

[111]     I do not accept the defendant’s characterization that wetness was an “inherent risk” of such a nature that the plaintiff should have been aware of it being slippery, given she had considered this potential and indeed looked for evidence of that risk. Given no visual clues arise from the wood itself I find that a sign should have been erected at the top of the ramp to warn that it could be slippery given the variable weather conditions at the site.

[112]     There was ease in avoiding the risk by either putting a frictional surface such as a metal grate on the boardwalk to reduce the slipperiness that wetness would cause, or even erecting a sign, warning visitors of the invisible danger. The costs of reducing the risk of slipperiness would have been minimal. As such, in all the circumstances, I find that the defendant breached its duty under the OLA to the plaintiff in failing to take any steps to reduce or eliminate the risk posed by the boardwalk becoming slippery when wet…

[121]     The breach of duty by the defendant, accordingly, is its failure to put up a caution sign. But for there being a sign visible to someone approaching the boardwalk, the Incident would not have occurred. Therefore, I find the plaintiff has established on a balance of probabilities that the defendant is liable for any damages flowing from the Incident.

$70,000 Non-Pecuniary Assessment for Partly Limiting Chronic Pain

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic pain with partial limitations arising from a vehicle collision.

In today’s case (Rabiei v. Oster) the Plaintiff was involved in a 2016 collision.  The Defendants accepted fault.  The crash resulted in various soft tissue injuries resulting in chronic pain in the plaintiff’s neck, back and shoulder.  These injuries resulted in some impairment in the Plaintiff’s ability to work and also impacted activities outside work.  Full recovery was not expected.  In assessing non-pecuniary damages at $70, 000 Madam Justice Adair provided the following reasons:

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Cyclist Struck in Marked Crosswalk Found 100% at Fault for Crash

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing a personal injury claim involving a cyclist struck by a vehicle.

In today’s case (Dhanoya v. Stephens) the Plaintiff cyclist rode into a marked crosswalk without stopping and was struck by a vehicle.  The Court found the cyclist was fully at fault for the collision and had the cyclist kept a proper lookout the collision could have been avoided.  In finding the cyclist solely liable Madam Justice Dillon provided the following reasons:

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$200,000 Non-Pecuniary Assessment for Chronic Post Concussion Syndrome

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a mild traumatic brain injury and post concussive problems caused by a collision.

In today’s case (Dornan v. Stephens) the Plaintiff was involved in a 2016 rear end collision.  The Defendants admitted fault.  The Plaintiff suffered a variety of injuries including a mild traumatic brain injury and post concussion syndrome which became chronic.

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ICBC Ordered To Pay “Accelerated Depreciation” Damages Following Vehicle Collision

As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple.  When a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.

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ERIK
MAGRAKEN

Personal Injury Lawyer

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

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