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More on BC Personal Injury Claims and Radiologists Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 54 Comments on More on BC Personal Injury Claims and Radiologists Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:





[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident.  This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court.  In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.


[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

_______________________________________________________________________________________________

In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

Do Parties Have to Disclose Documents They Will Use to Impeach Opposing Expert Witnesses?

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


When a party to a personal injury lawsuit wishes to use documents at trial those documents have to be disclosed to the opposing side as per the BC Supreme Court Rules otherwise the evidence may not be admissible.  Two recent cases from the BC Court of Appeal have clearly highlighted this.  Today, reasons for judgement were released by the BC Supreme Court considering the scope of documents that need to be disclosed.
In today’s case (Beazley v. Suzuki Motor Coroporation) the Plaintiff called a witness to give expert evidence.  The witness testified that he had limited knowledge of something known as the “Critical Sliding Velocity standard” and that he had “never proposed such a standard to the National Highway Traffic Safety Administration“.
On cross-examination the Defence lawyer produced a letter written by the witness addressed to the National Highway Traffic Safety Administration apparently “supporting the use of a Critical Sliding Velocity Standard“.
The Plaintiff’s lawyer objected to this cross examination arguing that the letter was not listed on the Defendant’s list of documents and therefore could not be used.  Mr. Justice Goepel disagreed finding that documents that are used solely for impeaching an expert wittiness’ credibility do not necessarily have to be listed.  Specifically the Court reasoned as follows:

[7] A party is obliged to list all documents that fall within the purview of Rule 26(1) including those documents that can properly be described as forming part of the solicitor’s brief: Stone v. Ellerman, 2009 BCCA 294, 92 B.C.L.R. (4th) 203; Dykeman v. Porohowski, 2010 BCCA 36. Neither Stone, Dykeman or the cases cited therein deal with the use of documents being introduced to impeach the general credibility of an expert witness.

[8] A party who chooses to call an expert vouches for that expert’s credibility. The type and nature of documents that might challenge such credibility are endless. They may include articles, letters, testimony, speeches or statements that the expert has made in the past. There may be other articles which critically challenge the expert’s conclusion. Most documents which go to challenge an expert’s opinion or credibility are not documents which are related to the matter in question in the action. They only become relevant because of the expert’s testimony and do not fall under the purview of Rule 26.

[9] This ruling does not apply to all documents that the defendants may wish to put to this or other witnesses. If a document is otherwise related to a matter in question, it is not protected from disclosure merely because it will be used in cross examination or forms part of the solicitor’s brief.

[10] The August 5, 1994 letter, however, only becomes relevant because of Mr. Heitzman’s testimony. It was not a document that need be listed and the defendant is entitled to use the document in cross examination.

[11] To the extent the plaintiffs object to other documents the defendants might wish to put to Mr. Heitzman, those objections will be dealt with as they arise.

Excluding Witnesses From Open Court in British Columbia

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If there are concerns that witnesses at trial will try to ‘match-up‘ their testimony it is  important to exclude them from Court before they testify.   In British Columbia the Supreme Court Rules don’t have any provision addressing the exclusion of witnesses during trial, however the Court retains a discretion to make such an order pursuant to it’s ‘inherent jurisdiction‘.  Reasons for judgement were released today providing a summary of this area of law.
In today’s case (He v. Yeung) the parties had a dispute about a commercial relationship.  The key witnesses to the negotiations were expected to testify and the Court was asked to decide whether an order should be made excluding these witnesses before they took the stand.  Mr. justice Burnyeat refused to make such an order and in doing so provided the following useful summary of this area of BC Civil Procedure:

[3] McLachlin and Taylor, British Columbia Practice (3rd ed.), Looseleaf (Markham, Ont.:  LexisNexis Butterworths, 2006), sets out this statement regarding the practice in British Columbia:

One limitation on the principle of an open court is the practice as to exclusion of witnesses.  The court, upon application of any party, may order that witnesses be excluded in the interest of securing the best possible evidence.  While the British Columbia Rules, unlike those of certain other jurisdictions, do not expressly confer a power to exclude witnesses on the court, it appears that the court has an inherent power to make such an order: see Moore v. Lambeth County Court Registrar, [1969] 1 All E.R. 782 (C.A.).  The practice is for counsel to ask for an order excluding witnesses.  …. If a witness defies an order of exclusion or circumvents it by discussing the proceedings with those who were present in the courtroom, his evidence cannot be excluded for this reason, although the weight given it may be reduced: Crawford et at. v. Ferris, [1953] O.W.N. 713 (H.C.); R. v. Dobberthien, [1973] 6 W.W.R. 539 (Alta. C.A.), affd (sub nom. Dobberthien v. The Queen) (1974), 50 D.L.R. (3d) 305 (S.C.C.).  Moreover, the witness may be cited for contempt:R. v. Carefoot, [1948] 2 D.L.R. 22 (Ont. H.C.).

(at p. 40?2)

[4] The Learned Author of The Law of Evidence, 10th ed. (London: Sweet & Maxwell, 1906) states:

If the judge deems it essential to discovering the truth that the witnesses should be examined out of the hearing of each other, he will order them all on both sides to withdraw, excepting the one under examination.  Such an order is, upon the application of either party at any period of the trial, rarely withheld, but it cannot be demanded of strict right.

(footnotes omitted) (at pp. 1007-1008)

[5] A more extensive history tracing the practice as far back as the story of Susannah from the Book of Daniel is set out in Wigmore, A Treatise in the Anglo-American System of Evidence in Trial at Common Law, Vol. 6 (Boston: Little Brown, 1940).  Wigmore states that the practice came from Germanic common law which the English law inherited.

[6] While the Rules of Court in Alberta (since 1923), in Manitoba (since 1913), in Ontario (since 1913), and in Saskatchewan (since 1921) provide that a judge may order a witness to be excluded at the request of either party, no such provision is specified in the British Columbia Rules or in a British Columbia statute.  Accordingly, it is the inherent jurisdiction of the Court which confers the power to exclude witnesses in civil trials.

[7] The traditional reasons for excluding witnesses include:  (a) if the hearing of opposing witnesses were permitted, the listening witnesses could ascertain the points of difference between their testimonies and could shape their own testimony to better advantage; and (b) regarding witnesses on the same side of the litigation, it deprives the later witness of the opportunity of shaping his or her testimony to correspond with the testimony of the earlier witness.

[8] In Bird et al. v. Vieth et al. (1899), 7 B.C.R. 31 (S.C.–F.C.), McColl C.J. on behalf of the Court stated that the ruling of a trial judge to exclude defendants as if they were witnesses was in error, and that a new trial should be allowed.  In the context of that appeal, the following statement was made:

We are of opinion that the learned trial Judge erred in dealing with the question of the defendants’ exclusion from the Courtroom as if they were in the same position as a witness, not a party to the action, whose exclusion, if requested, is commonly ordered as of course.  (at pp. 31?32)

[9] In McIntyre et al. v. McIntyre, [1925] 2 W.W.R. 581 (B.C.S.C.), Macdonald J. ruled that both plaintiffs who would be witnesses were entitled to remain in the Court but that, with the concurrence of their counsel, the one plaintiff would be excluded while the other plaintiff was giving evidence.  The rationale for why it was necessary for the plaintiffs to be available was described as follows:

If that were granted and the plaintiff excluded, something might arise and counsel would not be aware of what his client’s views were on the matter, and he would have to run out of Court. … The party instructing counsel would not be in a position to conduct his case if he were excluded from the Court.  (at p. 582).

[10] In the context of a criminal appeal, Branca J.A. made this statement in R. v. Smuk, [1971] 4 W.W.R. 613 (B.C.C.A.):

In my practice, in our law courts, counsel have always asked for an order excluding witnesses and the order is a discretionary one.  On the civil side the litigants, of course, have an absolute right, subject to certain exceptions, to remain in court and on a criminal charge the accused has the same right.

Hearsay Evidence: BC Injury Trials and Missing/Deceased Witnesses

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Hearsay evidence is an out of Court statement introduced at trial for the truth of its contents.  In British Columbia hearsay evidence is admissible in certain circumstances.  BC Courts apply a ‘principled exception‘ to the general rule against hearsay evidence in circumstances where there is sufficient ‘necessity and reliability‘.
What happens if a key witness dies before a personal injury claim in BC heads to trial?  Can previously recorded evidence from that witness be introduced under this ‘principled exception‘?  Reasons for judgement were published this week on the BC Supreme Court website dealing with this issue.
In this week’s case (Simon v. Portsmith) the Plaintiff suffered very serious injuries when he was struck by a vehicle as he was walking along a highway in Salmon Arm, British Columbia.
A key question at trial was weather the owner of the vehicle consented to the driver operating the car.  Another important issue was where the Defendant driver lived at the time of the accident.  The owner of the vehicle could have been ‘vicariously liable‘ for the driver’s actions depending on the answers to these questions.
A witness by the name of Mr. Stushnov was expected to give evidence on where the alleged driver was living at the time of the crash.  Prior to trial Mr. Stushnov swore an affidavit setting out his evidence on this point.  The witness died unexpectedly prior to trial.  The Defendant tried to introduce the affidavit as evidence.  The Plaintiff objected.  Mr. Justice Boyce let the evidence in providing the following useful analysis:

[13] In the case at bar, the plaintiff concedes that the evidence is necessary. Mr. Stushnov is no longer available to testify. The issue is whether the evidence meets the threshold reliability test.

[14] The evidence was taken under oath before a lawyer. Mr. Stushnov was not involved with the events giving rise to this claim in any way. There is no suggestion that he had any personal relationship with Mr. Portsmith other than by providing him a place to live for a period of time. There is no suggestion of any reason that he might have to not tell the truth. He had no interest in the outcome of this proceeding. He was an independent witness.

[15] It is of course true that the plaintiff would now have no way to test Mr. Stushnov’s credibility through cross-examination. However, as counsel for the plaintiff on this motion frankly stated, when the matter was before the court on the Rule 18A application, the credibility of Mr. Stushnov was not in issue and was not raised. What was in issue was the credibility of Mrs. Bostock.

[16] Further, as noted by counsel for the defendant, plaintiff’s counsel has known since 2005 what evidence Mr. Stushnov was expected to give. They chose not to interview the witness to test his credibility.

[17] This evidence is clearly important to the defence. In my view, despite the fact that the plaintiff does not have the ability to cross-examine the deponent, which is something that is often the case when resort has to be made to hearsay evidence, the circumstances surrounding the making of the statement provide sufficient safeguards of reliability to justify its admissibility. The affidavit will therefore be received in evidence.

More on ICBC Claims and the Timing of Formal Settlement Offers

Written by admin on . Posted in Civil Procedure, Settlement Law, Uncategorized.


One principle that is becoming well defined with respect to Rule 37B is that settlement offers made on the eve of trial may not trigger any costs consequences.  Reasons for judgement were released today demonstrating this.
In today’s case (Parwani v. Sekhon) the Plaintiff was injured in a 2004 BC car crash.  The Plaintiff sued for damages.  As trial approached the Plaintiff offered to settle his case for $37,000 plus costs and disbursements.  On the last business day before trial the Defendants responded with a formal settlement offer under Rule 37B for $10,000 plus 50% of disbursements.
The claim went to trial and the Plaintiff claimed damages of $270,000.  The claim was largely unsuccessful with the Plaintiff being found 75% at fault.  Damages were assessed at $25,000 leaving an award of $6,250 for the Plaintiff (25% of $25,000).
The Parties could not agree on costs consequences.  The Defendants argued that since they beat their formal offer they should be awarded the costs of trial.  Madam Justice Ross disagreed with this submission finding that while the Defendants offer should have been accepted it was simply made too late.  In declining to award the Defendants any costs the Court reasoned as follows:

[18] The defendants submit that the offer to settle was one that ought reasonably to have been accepted given the evidence with respect to the liability issue. In addition, the position taken by the plaintiff at trial with respect to his losses was unreasonable given the medical evidence and the paucity of evidence to support the claims. The offer exceeded the plaintiff’s recovery at trial. The position of the plaintiff was that he did not have adequate time to consider the offer, coming as it did on the eve of trial. Moreover, had the plaintiff accepted the offer, considering the disbursements already incurred, the plaintiff would have recovered only $765.34. Accordingly, it was not reasonable to accept the offer. The plaintiff had made an early offer to settle that reflected a considerable discount to reflect the uncertainties in the case.

[19] In my view, while the defendants’ offer was reasonable, it was not early. It came on the eve of trial, after substantial costs and disbursements had been incurred. Such an offer is not the embodiment of the conduct the rule intends to promote. In the circumstances, and considering the factors identified in the rule, I am not prepared to consider the offer in relation to the award of costs.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

You can click here to read access my archived posts discussing Rule 37B in injury lawsuits.

More on BC Injury Claims and Biomechanical Engineering Evidence

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Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.
Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces.  In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.
Biomechanics is a relatively new scientific field.  Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence.  Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.
In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.  In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.
The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.
Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible.  In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“.  The Court reasoned as follows:
[1] Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ? the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…

[12] Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:

(1)      the evidence must be relevant to some issue in the case;

(2)      the evidence must be necessary to assist the trier of fact;

(3)      the evidence must not contravene an exclusionary rule; and

(4)      the witness must be a properly qualified expert.

[15] Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…

[23] To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).

[24] In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.

[25] I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.

ICBC Medical Exams and Secret Tape Recordings

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Further to my previous post discussing the topic of taping independent medical exams, reasons for judgement were released today demonstrating that BC Courts are not very receptive to such evidence if secretly obtained.
In the 2006 case of Wong v. Wong the BC Court of Appeal made it clear that permission for a Plaintiff to record a defence medical exam will rarely be granted.  Sometimes Plaintiff’s have recorded such exams without seeking the court’s permission first.  While the secret audio recording of an independent medical exam by a participant is not necessarily a criminal offence in Canada, it is frowned upon.   One remedy a Court can exercise when presented with such evidence is to simply exclude it from trial.  Today’s case used exactly this remedy.
In today’s case (Anderson v. Dwyer) the Plaintiff was injured in a 2004 rear end crash.   ICBC, on behalf of the Defendant, admitted fault for the accident but disputed the extent of the Plaintiff’s injuries.  In the course of the lawsuit the Plaintiff attended a medical exam with Dr. Locht, an orthopaedic surgeon selected by ICBC.  The Plaintiff surreptitiously recorded this exam and then her lawyer tried to make use of this recording at trial.  Mr. Justice Schultes was not receptive to this and disallowed the use of this recording for cross examination purposes.  While the reasons for judgement did not have an analysis of why the Court used this remedy the following was highlighted:

[12] The plaintiff also admitted surreptitiously recording her examination by Dr. Locht, the orthopaedic surgeon who conducted an independent medical examination of her on behalf of the defendant. ( This came to light as a result of an objection by the defendant’s counsel during the cross-examination of Dr. Locht. The plaintiff’s counsel did not use the transcript any further after the objection and nothing in my analysis of Dr. Locht’s evidence turns on its use.)

[13] Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.

[14] She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence…

[43] It was suggested to Dr. Locht that his report presented some of the plaintiff’s symptoms in a misleading way. For example, he described her as having “no sleep disorder”, although she told him that her neck pain woke her several times throughout the night. His explanation was that because she was still getting six hours of sleep per night, in total, he did not consider that she had a sleep disorder. Similarly, he described the plaintiff as being “physically capable” of continuing all work, household, and recreational activities that she could do before the accident, despite her descriptions of experiencing severe pain (and in one case nausea) after engaging in them. He explained that his determination that a person is physically able to perform an activity does not depend on whether she in fact avoids that activity because it causes her pain…

[49] With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence.

Given the very important role expert witnesses play in injury litigation it is fair to debate whether tape recordings should routinely be used to add greater objectivity to the IME process.  Unless and until this comes about our Court’s will continue to struggle with the use this evidence will be put to when parties choose to obtain evidence through surreptitious recording.

Winning Courtroom Strategies – Chambers Tips

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When the parties to a lawsuit in the BC Supreme Court can’t agree on their respective rights and obligations under the Rules of Court a Judge or Master can be asked to decide in a “chambers application“.
When appearing in Chambers it is important to persuasively advance your position.  Focused and disciplined submissions will maximize your chances for a favourable outcome.   So how should you structure your argument?
Recently a great summary was provided by Madam Justice Helen MacLeod-Beliveau in a continuing legal education seminar for the Ontario Bar Association.  She shared her insights from a judge’s perspective. Modifying the tips to a lawyer’s perspective the following useful outline can be followed:
1.  What order you want the Court to make?
2.  What are the legal issues in your dispute?
3.  Which Rule(s) of Court are you relying on in support of your application?
4.  What are the crucial facts of your case?
5.  What are the leading cases applying the Rule(s)?
6.  Explain why the Judge should grant the order.
7.  Sit Down!
8.  After your opponents submissions explain where they have clearly erred.
9.  Don’t re-argue your motion in your response to your opponent’s submissions.

Infant Injury Claims in British Columbia and Conflicts of Interest

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


When an infant (for the purposes of civil lawsuits anyone under 19 years of age is considered an ‘infant’ in British Columbia) is injured and wants to sue for damages they can’t start a lawsuit on their own.  They must do so through an adult ‘litigation guardian‘.
For obvious reasons, it is common for a parent to fill the role of litigation guardian.  Oftentimes in infant injury claims Defendants argue not only that the child is to blame for the accident but also that the child’s parents are to blame for failing to adequately supervise their children.  If this defence is raised against a parent litigation guardian it can place them in a conflict of interest.  So what can be done in this situation?  Reasons for judgement were released demonstrating one possible outcome to such a fact pattern.
In today’s case (Gill v. Morin) the Plaintiff was “grievously hurt” when his ATV struck or was struck by a car driven by the Defendant.  He started a lawsuit against the motorist with his mother acting as litigation guardian.  The Defendant denied fault and argued that the Plaintiff’s mother was to blame for “failure to adequately supervise (her) son”.
Once placed in this conflict of interest the Plaintiff’s mom applied to the Public Guardian and Trustee (“PGT”) and asked them to take over the lawsuit.  The PGT refused to do so unless they were “insulated from any claim for costs” in the event it turned out to be a losing lawsuit.
The parties turned to the Court for a solution.  The Plaintiff asked the Court to order that the PGT act as litigation guardian.  The PGT opposed this arguing that the lawsuit should simply be put on hold until the infant becomes an adult.  The Defendant opposed the PGT’s position arguing this would result in unfair delay.
The Court ultimately sided with the PGT and held that the lawsuit should be put on hold until the infant’s 19th birthday and from there he could decide whether to carry on with the lawsuit.  Master Keighley provided the following analysis:

[32] It is indeed regrettable that this defendant, who may eventually be found to be blameless with respect to this accident, may be obliged to wait several more years for the issues of liability and perhaps quantum to be resolved, but in the absence of any specific evidence, I am not prepared to find that the defendant is prejudiced by a stay of this action until the plaintiff obtains the age of majority. The limitation for this cause of action will not begin to run against the infant plaintiff until he reaches the age of majority on February 2, 2012 and it seems to be the defendant is no more prejudiced by a stay of proceedings then he would be had the plaintiff waited until then to commence this action.

Result

[33] In the result then, Piar will be removed as litigation guardian forthwith. The third party’s application to appoint the PGT as litigation guardian is dismissed. The action will be stayed until the infant plaintiff reaches the age of majority. Should counsel be unable to resolve the issue of costs, that issue may be brought back before me.

If you are faced with a similar dilemma this case is worth reviewing in full as the Court summarizes a handful of useful precedents disposing of similar applications at paragraphs 16-30 of the reasons for judgement.

Cost of MRI and Medical Report Ordered By Lawyer Disallowed

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The winning side to a lawsuit in the BC Supreme Court is allowed to recover reasonable disbursements.  Some of the greatest costs of advancing injury lawsuits are those associated with expert medical evidence.  Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, considering two common disbursements of Plaintiff lawyers in ICBC injury lawsuits; Private MRI’s, and medico-legal reports.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC car crashes.  He settled his claims for $42,000 plus costs and disbursements.  The parties could not agree on some of the disbursements and the BC Supreme Court was asked to resolve the dispute.  The two biggest items in dispute were private MRI’s ordered by the Plaintiff’s lawyer and a medico-legal report from a psychologist.  Both of these items were disallowed as unreasonable expenses.

  • MRI

The Plaintiff’s lawyer sent his client for a private MRI to better investigate a shoulder injury.   The two scans cost just over $2,000.  The Plaintiff’s lawyer gave the following explanation for incurring this expense in the prosecution of the claim:

The plaintiff claimed damages herein as a result of injuries she sustained to both her neck and trapezius (shoulder area). Her symptoms persisted for years after the accident and were continuing when I made arrangements to have the plaintiff undergo magnetic imaging. I wanted to obtain the best possible imaging in order to ascertain the nature and extent of the plaintiff’s injuries and to uncover objective evidence of injury…

I ordered the scans because in my view presentation of my client’s claim required it. The plaintiff had been off work for a long time and had continuing complaints. These pain symptoms were also causing significant depression. I knew the fact of whether or not there were objective signs of injury as opposed to only subjective complaints was going to be an important issue at trial and thus I ordered the scans to obtain evidence going to this issue.

I knew when I ordered the scans that upon resolution of the subject claims the client would likely be required to sign a release thereby ending her ability to make any further claim for damage, on a permanent basis, to her neck and shoulder. Knowing this and the fact I was responsible for giving advice to the plaintiff regarding her injury and damages and the release, I ordered the scans to ensure there was no latent injury not previously uncovered. This was one of the reasons I ordered the scans. The plaintiff herein was going to forever give up her right to sue in connection with these injuries and thus it was my view that it was important to have the scans undertaken. In fact it was a term of the settlement herein that the plaintiff sign an ICBC form of release.

Registrar Sainty disallowed these disbursements providing the following reasons:

[38] The test for determining whether a disbursement ought to be allowed is:

…whether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred”. (Van Daele v. Van Daele, [1983] B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.) (at para. 109))

[39] The provisions of Rule 57(4) of the Rules of Court relating to the Registrar’s discretion to award disbursements are broad. In general:

The registrar must consider all of the circumstances of each case and determine whether the disbursements were reasonably incurred and justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client. (see Bell v. Fantini(1981), 32 B.C.L.R. 322 (S.C.)) at para. 23.))..

[44] I am going to disallow the claim for reimbursement for the two MRI scans. I cannot accede to Mr. Fahey’s argument that simply because he, as counsel, thought it was necessary to obtain MRI scans I ought not to question that decision unless I find it to be extravagant or overly zealous. In my view, and I am going to expand on what Registrar Blok held in Ward v. W.S. Leasing Ltd., to be allowed as a necessary and proper disbursement, there must be some medical reason for ordering an MRI. It is not simply enough that counsel seeks some (potential) objective evidence of an injury. Nor is it enough that counsel wishes to ensure that there is no latent injury such that his client might sign the standard release required. There is always a risk in personal injury litigation that a new injury or an injury that has not yet been determined might be found following settlement. That is simply a risk of litigation and a risk of settlement.

[45] I am not satisfied on the evidence before me that costs of the MRI scans were necessarily or properly incurred in the conduct of the proceeding and I will not allow them.

  • Psychologists Medico-Legal Report:

The other disputed item was a medico-legal report from a psychologist.   The Plaintiff retained the services of both a psychologist and a psychiatrist.  They both authored reports addressing the Plaintiff’s injuries.  The cost of the psychologist’s report was near $4,000.  The Defendant argued it was unreasonable for the Plaintiff to retain both experts stating that “(either) one of them could have provided the expert evidence required“.  Registrar Sainty agreed and disallowed this disbursement.  In doing so the Court reasoned as follows:

[52] I am not convinced, on the evidence before me, that it was necessary and proper to hire both experts given that their expertise clearly overlaps and each used similar methodology in assessing the plaintiff. The plaintiff saw both Dr. Joy and Dr. Sehon in July 2008. There was no reason, in my view, to have the plaintiff assessed by both, except to some extent, to do some “doctor shopping” (and in saying so I mean no disrespect to Mr. Fahey’s decision to have the plaintiff seen by both Dr. Joy and Dr. Sehon). My view is bolstered by the fact that, at the time that both experts were retained (or at least at the time their reports were ordered), the plaintiff had not yet seen Dr. O’Shaunessy (and certainly his report was not available) and thus Mr. Fahey’s concerns over having an expert who could “match” Dr. O’Shaunessy were unfounded.

[53] I find that is was not necessary or proper to have two experts engaged in a similar assessment at the time these experts were retained and, accordingly I disallow the claim for the expert report and fees charged by Dr. Joy in the amount of $3,937.50.