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More on ICBC Claims, Trials and Costs

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

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?
Reasons for judgement were released today further dealing with this issue.  In today’s case (Bagasbas v. Atwal) the Plaintiff brought an injury claim in the BC Supreme Court.  At trial the Plaintiff’s evidence was contradicted by photos that she had posted on her Facebook account.   The result was a finding that the Plaintiff suffered rather minimal injuries that were valued at $3,500 by the trial judge.
The trial judge was then asked to determine whether the Plaintiff should be awarded ‘costs’ which would depend on whether she had ‘sufficient reason for bringing the proceeding in the Supreme Court.’  Madam Justice Satanove held that the plaintiff did not have sufficient reason and in coming to this decision said the following about a litigants obligation to fully inform treating physicians and lawyers of pertinent facts:

[5] Plaintiff’s counsel in the case at bar has filed an affidavit from the plaintiff’s solicitor of record setting out the state of affairs that existed at the time the plaintiff asked him to initiate the action.  This solicitor relied primarily on a medical?legal report requisitioned by him from the plaintiff’s general practitioner, Dr. Ladhani.  Dr. Ladhani’s report dated February 8, 2008, concluded that subsequent to the accident, the plaintiff developed pain in her neck, upper and lower back areas, as well as her right hip area.  He found she had made slow but steady progress over the last 20 months but that she continued to have some pain in the upper and lower back areas, as well as her right hip.  He anticipated that the plaintiff would continue to improve over the next few months but if her condition did not improve, he may have to order a CAT scan of her lower back.

[6] Let me pause at this juncture and say that I find it eminently reasonable for counsel faced with a medical-legal report of this nature to commence an action in Supreme Court as opposed to Provincial Court.  The prognosis was unclear and further radiography was required.  Later, a CAT scan showed the plaintiff to have a herniated disk but as I have said, the plaintiff did not claim that this was due to the accident.

[7] The difficulty that arises which has caused the parties to appear before me is that on cross-examination of Dr. Ladhani at trial, it became apparent that the plaintiff had not been fully forthright with her doctor.  From the date of the accident to September 2, 2006, she advised Dr. Ladhani that she continued to get pain in the right side of her neck and upper back and lateral movements of these areas produced discomfort.  Later, in subsequent visits, she complained of pain in her lower back, tenderness in her spine, difficulty wearing high heels, inability to run or kayak or jog and the other matters which are itemized in Dr. Ladhani’s report.  She did not tell him that between June and September 2006, she had taken a camping trip to the United States, had attended her Filipino dance rehearsals regularly, had flown to Antwerp, Belgium for two weeks where she participated in dance performances and after-hours celebrations.  Dr. Ladhani seemed surprised to see the many photographs shown him by defence counsel which photographs depicted the plaintiff in quite intricate dance manoeuvres, sometimes in high heels looking comfortable and smiling.  The plaintiff also did not tell Dr. Ladhani of her ongoing activities after September 2006, including such things as a trip to Cancun, to Hawaii and further dance appearances in Kamloops, Victoria and other places.

[8] Dr. Ladhani was not asked if knowing of these facts in February 8, 2008, would have changed his opinion at that date but it certainly reduced the weight I gave to his opinion.

[9] In my view, a plaintiff who does not fully inform his or her treating physician and legal counsel of the pertinent facts at the time medical or legal advice is sought runs the risk of receiving inaccurate or erroneous advice through no fault of the professional advisors.  If all the evidence I heard at trial about the plaintiff’s condition before February 8, 2008, had been in the possession of counsel at the time he commenced the action, I expect he would have advised the plaintiff to start an action in Small Claims Court where this case belongs.

[10] The onus is on the plaintiff under Rule 57(10) to establish sufficient reason for bringing the proceeding in Supreme Court and I find that she has not done so.  In no way is her counsel to blame.  This regrettable outcome for the plaintiff lies at her feet alone.  Therefore, the plaintiff is not entitled to costs other than her disbursements.

Expert Evidence and Litigation Privilege

Written by admin on . Posted in Civil Procedure, Uncategorized. 2 Comments on Expert Evidence and Litigation Privilege

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.

ICBC Claims and Multiple 'Independent Medical Exams'

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 49 Comments on ICBC Claims and Multiple 'Independent Medical Exams'

As I’ve previously posted, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 30 of the BC Supreme Court rules which allows the court to order an independent exam to level the playing field.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.
In today’s case (Deacon v. Howe) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Pisesky) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a physiatrist.  The Plaintiff opposed this motion.  Master Taylor, in dismissing the motion, discussed and applied the law as follows:

[15] The issues I have to determine are:

(1) whether the report of Dr. Pisesky is a report pursuant to Part 7, or whether it is a first IME report based upon the extent and content of the report; and

(2) If the report of Dr. Pisesky is considered a first IME, would the defendants be entitled to seek a further examination pursuant to Rule 30(2).

[16] Madam Justice Dillon considered these very issues in Robertson v. Grist, 2006 BCSC 1245.  In relation to the first issue, she said this at paragraph 14:

Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations. The examination was a first independent medical examination within the meaning of Rule 30.

[17] There is evidence that this particular claims adjuster was acting in both the Part 7 and tort claim.  At the time of the examination of the plaintiff by Dr. Pisesky on July 16, 2006 the plaintiff was represented by counsel and the writ and statement of claim had been issued and served on ICBC.  Accordingly, I have formed the opinion, following upon the analysis of Dillon, J. that the report of Dr. Pisesky is a first report based on the nature and content of the report.

[18] In relation to whether the defendants would be entitled to a further examination pursuant to Rule 30(2), Dillon, J. said this at paragraph 15:

Should a second independent medical examination be ordered?  The test for a second opinion was recently re-stated by Master Hyslop in Shaw v. Koch (2004), 4 C.P.C. (6th) 271, 2004 BCSC 634 at para. 25 [Shaw], from the decision in Jackson v. Miller, [1999] B.C.J. No. 2751 at para. 12 (S.C.) (QL) [Jackson], to the effect that a second opinion on the same matter cannot be obtained unless something has occurred since the first examination which was not foreseeable or for which could not have been addressed by the examiner on the first occasion.  The defendant has conceded that there are no grounds to justify a second examination. In these circumstances, the second independent medical examination by an overlapping specialty doctor should not be ordered.

[19] In the instant case, the defendants, as earlier indicated, contend that they are entitled to have an IME from a physiatrist in order to put the parties on an equal footing.  The defendants’ argument is that if the plaintiff has the opinion of two physiatrists then the defendants should be entitled to an IME by a physiatrist in order to put the parties on an equal footing.  As well, the defendants have successfully sought an order to have the plaintiff examined by Dr. Solomon, a psychiatrist.  That examination occurred on May 14, 2009.

[20] In Guglielmucci the defendant provided an opinion from a psychiatrist as to the necessity of an IME by a psychiatrist.  In the case at bar no such opinion has been provided for the benefit of the court and no evidence has been provided that there has been a change in the plaintiff’s condition since Dr. Pisesky’s last medical report.  The affidavit of a paralegal was provided by the defendants in which the deponent says at paragraphs 9 and 13:

[9] The plaintiff had attended the IME with Dr. Pisesky at the request of the then handling adjuster, David Burdett, which was arranged under Part 7 of the Regulations with respect to the plaintiff’s application for Part 7 benefits, and prior to defence counsel being retained on or about July 10, 2006.

[13] I have been advised by John Hemmerling, and verily believe to be true, that Dr. Coghlan is his referred choice of medical examiner to conduct an IME of the plaintiff in the tort action due to his expertise in the field of physiatry and the thoroughness of his assessments and his willingness and ability to read and interpret the medical information sent to him in order to form a reasoned opinion for the court and that this IME is required to assess the opinions of Dr. le Nobel and Dr. Vallentyne.

[21] I am of the view that the affidavit of this deponent is of no assistance to the application of the defendants.  As was said by the court in Haleta v. Jehn and Others, 2008 BCSC 1522, “there is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.”

[22] Dr. Pisesky’s report of July 16, 2006 was thorough.  It addressed issues far beyond a basic Part 7 report.  In my view there is no need for a physiatrist to examine the plaintiff, especially in view of the plaintiff’s agreement to be seen and assessed once again by Dr. Pisesky.  Accordingly, the defendants’ application for an IME by Dr. Coghlin is dismissed.

[23] The plaintiff shall have her costs of this application.

More on Car Accident Claims, Complexity and Jury Trials

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

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

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

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

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

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

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

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

Court may refuse jury trial

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

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

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

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

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

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

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

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

ICBC Injury Claims, Video Surveillance and Disclosure

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

CONCLUSION

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

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

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

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

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

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

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

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

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

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

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

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

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

More on BC Hit and Run Accidents

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 54 Comments on More on BC Hit and Run Accidents

I’ve previously posted that victims of Hit and Run accidents in BC can make a claim directly against ICBC in tort in certain circumstnaces under Section 24 of the Insurance (Vehicle) Act
Section 24 has certain restrictions built in limiting the circumstances when ICBC can be sued as a nominal defendant.  One of these restrictions requires an injured Plaintiff to take reasonable efforts to identify the driver/owner of the offending vehicle.
Reasons for judgement were released today addressing a victim’s obligations to make ‘reasonable efforts’ to identify the driver/owner of offending vehicles in s. 24 ICBC hit and run claims.
In today’s case (Fan v. ICBC) the Plaintiff was injured in a BC Car Crash.  She failed to identify the at fault motorist and brough a claim direclty against ICBC for her pain and suffering and other losses in tort. The Plaintiff’s case was dismissed for failing to take reasonable efforts to identify the at fault motorist.  In dismissing the claim Mr. Justice Curtis explained the duty of motorists involved in s. 24 hit and run claims to make ‘reasonalbe efforts’ as follows:

[20] The British Columbia Court of Appeal considered what was then s. 23 of the Insurance (Motor Vehicle) Act in the case of Leggett v. Insurance Corporation of British Columbia, [1992] B.C.J. No. 2048.  In that case, a man whose car was rear ended spoke to the driver who hit him and both agreed each would look after his own damage.  The man did not bother to obtain the name of the driver or owner of the vehicle because he did not plan to make any claim.  He later sought to recover damages for injury from the Insurance Corporation of British Columbia.

[21] Taylor J.A. in delivering the Reasons of the Court of Appeal, dismissing the claim, held at paras. 7 – 13 of the Reasons:

Here the trial judge was of the view that Mr. Leggett’s ignorance of his injury until the following day made it reasonable that he would not until then make any effort to obtain identification particulars. The judge found that the efforts which Mr. Leggett thereafter made to trace the owner and driver were “reasonable” for the purpose of Section 23(5).

I find myself unable, with respect, entirely to agree with the approach taken by the trial judge.

The section provides a means by which a person who has suffered injury or property damage in a motor vehicle accident may obtain compensation from the government insurer even though the driver said to be at fault, and the owner of the vehicle which was being driven by that person, are insured in another jurisdiction or not insured at all, even though the corporation will, in any event, be unable to look to the other driver for assistance in resisting the claim, and even though the corporation will be unable to obtain reimbursement in the event the other driver is uninsured or there has been a policy breach, or to obtain contribution by way of increased premiums through forfeiture of the other party’s ‘safe driving’ discount. As the trial judge recognized, protection against fraudulent claims is only one of the purposes of the requirement that the claimant show inability to identify the other driver and owner as a condition of being able to claim under the section. In my view the overall purpose of the section is to limit the exposure of the corporation to claims brought by persons who, in the matter of seeking to identify those responsible for the accident, have done everything they reasonably could to protect what ordinarily would be their own interests, and which, by virtue of the section, become the interests of the corporation.

The corporation’s exposure under the section is limited to claims brought by those who could not have ascertained the identity of the parties responsible. It does not, in my view, extend to claims by those who have chosen not to do so.

I do not think the words “not ascertainable” should be strictly interpreted, so as to mean “could not possibly have been ascertained”. I think they are to be interpreted with reference to subsection (5) so as to mean “could not have been ascertained had the claimant made all reasonable efforts, having regard to the claimant’s position, to discover them”. Where a person knows that he or she has been involved in a motor vehicle accident, but refrains even from recording the licence number of the other vehicle, when that number is visible and the claimant could, had he or she wished, reasonably have recorded it, such a claimant must, in my view, find it particularly difficult, and probably impossible, to establish that he or she made all reasonable efforts to discover the identity of the owner and driver of that vehicle for the purposes of the section.

The test seems to me to be subjective in the sense that the claimant must know that the vehicle has been in an accident and must have been in such a position and condition that it would be reasonable for the claimant to discover and record the appropriate information. But the claimant cannot be heard to say: “I acted reasonably in not taking the trouble to find out”.

I think that in essence the test is that which was formulated by Hinkson, L.J.S.C. (as he then was) in King et al v. A.G. (B.C.) (1968), 66 W.W.R. 223 (B.C.S.C.), followingRossiter v. Chaisson, [1950] O.W.N. 265 (Ont. H.C.). In the King case, which was decided under the then Section 108 of the Motor Vehicle Act, R.S.B.C. 1960 Chapter 253, the judge (at p. 226) held the appropriate test to be whether the claimants had “pursued the investigation to identify the vehicle and its owner and driver as resolutely and resourcefully as they would have done in like circumstances” had there been no such provision. In order to accommodate the current statutory requirement in the present context, I would add, after the words “would have done in like circumstances”, the words “if the claimant intended to pursue any right of action which he or she might have arising out of the accident”.

[22] In the case of Johal v. Insurance Corporation of British Columbia and John Doe, Mr. Johal was struck by a car while walking across a street.  The driver got out of his vehicle and asked Mr. Johal how he was, but Mr. Johal, having been traumatized by the collision did not think to ask for the driver’s identity.  When the ambulance arrived, he said he felt fine and took a taxi.  The next morning his left knee was swollen and he realized he had been hurt.  Two days after the accident, he telephoned ICBC and the police.  The police told him he had to report in person which he did 12 days after the collision.  About six weeks after the accident, he advertised for witnesses in the information wanted section of a small neighbourhood paper.

[23] Esson C.J.C. as he then was, in dismissing Mr. Johal’s claims ruled as follows:

… I do not think that the plaintiff’s action is precluded by his failure to do more than he did on the Saturday evening. Although he may not have been in “shock” in a technical sense, it is understandable that he was in some state of confusion and, bearing in mind that he then believed he had not been injured, I would not hold against him his failure to get information at that time.

But, by the next morning, the plaintiff was aware that he was suffering from an injury. He did nothing until the following day. His conduct in telephoning I.C.B.C. that day and giving a full written report within days thereafter was reasonable enough, but only in a most indirect way can it be described as an effort to ascertain the identity of the owner or driver. A timely report to the police would have been more in point; to defer that step for a further ten days was less than reasonable. The advertisement in the personal column was so belated and in an organ of such limited circulation as not to be reasonable. There is no evidence of any attempt to track down the ambulance crew or of any effort to find witnesses at the location. The test which the plaintiff must meet is to satisfy the court that he made “all reasonable efforts”. In a case, such as this, where there is no suggestion of fraud, I would regard “reasonable” as the fundamental element of the test. It should not be made so exacting that it cannot be met. But, on the facts proved here, I cannot be satisfied that the plaintiff has met the test.

[24] The wording of the section itself and previous decisions clearly establish that the onus is on Ms. Fan to establish that she made all reasonable efforts to establish the identity of the owner and driver.  (Nelson v. Insurance Corporation of British Columbia, 2003 BCSC 121, paras. 17 and 18):

On the evidence before me, I am not satisfied that “all reasonable efforts have been made … to ascertain the identity of the unknown owner and driver …”

[25] Firstly, Ms. Fan’s evidence about what happened at the scene is contradictory.  Her trial evidence was that another vehicle parked between her and the one that struck her which combined with the dark, prevented her from seeing the license plate while she was walking toward it.  Previous statements she gave suggest there was only one vehicle.  At trial, she testified she spoke to the second man and perhaps the driver did not speak English.  In her statement to ICBC three weeks after the accident, she said, “The other driver said that his car is ok ….  He asked  me what happened to me ….”  Ms. Fan’s evidence is not sufficiently reliable for me to determine what actually occurred and on that basis to decide whether her actions at the scene were reasonable or not.

[26] Secondly, even if Ms. Fan’s attempts at the scene, such as they were, were reasonable, her attempts to identify the owner and driver thereafter were not.  When she spoke to the police at the time she mistakenly believed the accident took place on United Boulevard.  When she spoke to the police, they told her to report the matter to ICBC.  It was clear at that point the police were not going to be investigating who had hit her.  Making a sign to post a month later then not putting it out because it was raining was no effort at all.  Nor was placing advertisements in theVancouver Sun and Province three months later, a genuine or reasonable effort.  Driving around looking for the car 15 minutes at a time for a couple of weeks following the collision, assuming that was done is in the absence of other reasonable steps is not sufficient.

[27] Patricia Fan has failed to prove that she has complied with the requirements of s. 24(5) of the Insurance (Vehicle) Act and is therefore not entitled to claim damages against the Insurance Corporation of British Columbia directly under s. 24.  The claim against the Insurance Corporation of British Columbia is dismissed.

BC Jury Discharched for Bringing Wikipedia Article to Court During ICBC Trial

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

Everything that seemingly could go wrong in an ICBC Jury Trial went wrong when an injured Plaintiff brought her claim to court in early May 2009 (Sharamandari v. Ahmadi).  ICBC, the insurer on the case, insisted on a jury trial.  Certain concerns about the jurors behaviour came to the trial judge’s attention which ultimately caused him to discharge the Jury.
One of the many interesting developments (click here to read Vancouver Reporter Ian Mulgrew’s recent story shedding light on some of the other notable developments) in this trial was the jury’s reference to outside legal research in the course of the trial.
During the case mention was made of the legal principle volenti non fit injuria.  One of the jurors took it upon himself to research this via wikipedia and apparently brought this outside legal research back into the jury room.  This of course was improper and contradicted the presiding judges instructions as it had not yet been determined whether this principle of law was to be considered by this jury (and if volenti was to go to the jury Wikipedia fails to explain how this principle of law has developed in British Columbia car crash cases).
Upon learning of this transgression the following exchange took place between the trial judge and the juror:
THE COURT Its come to my attention that you may have brought outside legal research into the jury room what part of my instructions telling you not to do that did you think that you could do it
JUROR  I didnt think this was this is a term that I I was looking for a definition of the term
THE COURT Yes And isnt that within the purview of outside or doesnt that come within the definition of doing outside research
JUROR  I didnt think so at the time
THE COURT I see And what were your grounds for not thinking so
JUROR I dont have an answer for that question
THE COURT okay why did you think if it was research for your benefit that you thought it was appropriate to bring it into the jury room and start to discuss it
JUROR  I thought that everybody would want to know because it was a definition
THE COURT A definition of a legal term
JUROR well yes yes and no It was it was from wikipedia It was just like its not a legal its not something that I go to for legal terms Its just something that was on the internet
Ultimately the judge discharged the jury for this and other transgressions.  In discharging the jury Mr. Justice Burnyeat made the following comments which give insight into just how much went wrong in this ICBC Jury Trial:
THE COURT I have been a judge for 13 years and what Im about to say I havent had to say before so I say it with considerable regret.
You were told by me not to do outside research and yet one of you has decided to ignore that and bring a wikipedia article which has absolutely no relevancy in Canada or in the jury deliberations and may well be based on us cases which are of no relevance in Canada and on an issue which may or may not go to you as jurors.
You were told not to consider the evidence until all evidence was before you and you have decided to start in anyway.
You were told to put the question of whether awards do or do not result in higher insurance premiums out of your minds and yet someone has decided to mention that it probably and speculate that it probably results in higher  insurance premiums for all of us if in fact an award is made by you and the amount of award.
You  were told to deal with the evidence alone and not views that you might have that would interfere with that And I am advised that comments were made about the heritage of the party and some of the  witnesses.
You were told to weigh the evidence of all experts equally but assume that those who testify for one party are being paid for their opinions as hired guns and not for opinions that are professionally arrived.  You were told to each consider all of the evidence but then divide up the evidence so that not everyone will necessarily look at everything thats before them. You were told that it may be necessary to sit  this week and next but ignored that advice I have  given in order that you can save time by adopting  a procedure which is totally inappropriate.
You  were told to spend Friday afternoon reviewing the  evidence but decide that your own schedules are more important than my instructions.
You have failed collectively and in some cases individually to discharge your duties as jurors and I have no alternative but to discharge you as a jury . Your actions have resulted in considerable hardship to both the plaintiff and to ICBC and the defendant.  As a result an answer  will not be available to them.  All parties must have a consideration of matters delayed for what may be a further six to 12 months.
The cost of  having expert witnesses appear for the plaintiff will be thrown away The cost of having to cancel the appearances of expert witnesses who would be appearing for ICBC will be considerable All witnesses will have to go through the anxiety of appearing in court a second time And you have caused a blow to the system a blow to the parties from which there can be no particular recovery You are discharged as a jury and you can now leave and I will not thank you for your attendance