Skip to main content

The Law of "Adverse Inference" Exlpained in BC Brain Injury Case

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

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.
Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.
Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.
In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

ICBC's Trial Policy Gets Judicial Attention

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Tort Reform, Uncategorized. 59 Comments on ICBC's Trial Policy Gets Judicial Attention

It used to be that when ICBC claims went to trial ICBC would only require the people they insure to participate at trial as necessary.  For example if fault was at issue the defendant would testify as to how the crash happened or if the Plaintiff seemed uninjured at the scene the Defendant would share his/her observations with the court.
More recently, ICBC has created a policy where the people they insure have to get extensively involved in the trial even if they have no vital role to play.   Reasons for judgement were released today by the BC Supreme Court discussing this ICBC trial policy.
In today’s case (Coates v. Marioni) the Plaintiff was injured 2006 car crash.  The at fault driver was insured by ICBC.  In the lawsuit the issue of fault was admitted leaving the court to only deal with the issue of the value of the ICBC claim.  The matter went to jury trial.  Just before trial ICBC made an offer to settle.  The Victoria jury returned a verdict just below ICBC’s formal settlement offer.  The trial judge was asked to decide what costs consequences should follow under Rule 37B since ICBC beat their formal offer (click here to read my previous posts about Rule 37B in ICBC Claims).
Madam Justice Gerow, who presided over this jury trial, refused to give the Defendant their costs despite beating their formal offer.  The Plaintiff was awarded costs through trial.  2 factors leading to this decision were the late delivery of ICBC’s formal settlement offer and the fact that the jury award was very close to the formal offer.
In asking that the Plaintiff be deprived of trial costs the lawyer hired by ICBC noted that the Plaintiff attended fewer days of the trial than the Defendant.  The court rejected this argument and in doing so discussed ICBC’s policy of forcing their insured defendants to sit through trial even if they have nothing to add to the evidence at trial.  Below are the highlights of this discussion:

[53] The defendant also argues that the plaintiff should be deprived of her costs because the defendant attended all of the trial and the plaintiff did not.  However, the defendant chose to attend the trial.  Although she testified, her evidence was very brief as liability had been admitted.  There was no requirement that the defendant attend throughout the trial, particularly in circumstances where she had to take time off work and travel to Victoria.

[54] The plaintiff argues the fact that the defendant attended more of the trial than the plaintiff is not a factor to be considered in assessing whether the plaintiff should be deprived of her costs.  The plaintiff points to an ICBC claims bulletin dated June 13, 2008 outlining a policy that requires defendants to attend the trials from start to finish.  In the bulletin it sets out that:  “This policy applies even if they will not be testifying.  The intent of the new requirement is to present a ‘face’ for the defendant to the court.  Defence counsel will be instructed to have the defendant sit at counsel’s table if possible.”  In the circumstances, I do not accept the defendant argument that her attendance at the trial is a factor that should favour depriving the plaintiff of her costs.

[55] Having considered the factors set out in subrule 6, including the relationship between the offer and the award, I have concluded that this is not an appropriate case in which to exercise my discretion to deprive the plaintiff of her costs on the basis of the offer to settle.

If you are insured with ICBC and are at fault for a car crash and injure another do you think there is any value in being forced to trial even if you have nothing to add?  Does giving a ‘face to the defendant’ make any sense when the lawsuit is an insured claim?  As always, feedback is welcome.

Lawyers Opinions, Mistrials and ICBC Injury Claims

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

US Trial Lawyer Elliott Wilcox recently wrote a great article on why “I” is one of the most dangerous words for a lawyer to utter in court during a jury trial.  The short answer is because it is inappropriate for lawyers to share their personal opinion as to the merits of a case.  When a lawyer uses the word “I” there is a good chance a personal opinion is going to follow.
Reasons for judgement were released today by the BC Court of Appeal demonstrating the repercussions of counsel sharing their opinions during jury trials.
In today’s case (Joy v. Atkinson) the Plaintiff’s lawyer made several comments during his opening statement to the jury which the ICBC defence lawyer took objection to.  After hearing submissions in the absence of the jury the trial judge granted a motion for a mistrial (click here to read my previous post about the trial judgement).
In dismissing the appeal the BC Court of Appeal said the following about lawyers sharing their personal opinion of the merits of the case in jury trials:

[20]          Whether the plaintiff’s argument is otherwise sound need not be decided because there is a further aspect of counsel’s opening that is of particular concern.  Counsel expressed his personal belief in the strength of the plaintiff’s case when he told the jury “we had to satisfy ourselves that Mr. Joy’s injuries are real, serious, and permanent” and that “Geno Joy has and will continue to suffer real harms and losses now and into the future”.  In my view, there is no doubt this was clearly an improper statement.  Counsel acknowledged that to be the case in submissions on the application for a mistrial.  He was in effect giving evidence, albeit inadmissible evidence that could never be challenged, about the plaintiff’s injuries and his losses. 

[21]          Counsel’s suggestion before the judge was that any damage done could be corrected by a jury instruction or what he referred to as a “rebuke”.  But no meaningful suggestion as to what that instruction might be was made nor is one advanced now.  I am unable to see what instruction the judge could have given the jury that would have afforded the defence any confidence counsel’s expression of his satisfaction with the plaintiff’s claim would be ignored.  The jury had been told counsel had satisfied himself – he knew, apparently by investigation – the injuries suffered which the defence was challenging were real, serious, and permanent and they had caused, and would in the future cause, real losses.  That was not an assertion each member of the jury could be expected to completely ignore no matter what they were told, and it bore directly on the fairness of the trial.

[22]          The judge did not refer to this part of the opening statement in the reasons he gave for declaring a mistrial but, in my view, it is fatal to the success of this appeal.  It cannot now be said there was no sound basis for a mistrial.

BC Personal Injury Claims and Circumstantial Evidence

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized.

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.

More on Rule 66, Rule 37B, ICBC Claims and Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 42 Comments on More on Rule 66, Rule 37B, ICBC Claims and Costs

Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff sued for damages under Rule 66.  The Plaintiff made a formal offer of settlement and ICBC did not accept it.  The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer.  (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences.  ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66.  Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs.  Madam Justice Adair reasoned as follows:

[13]        Sub-rules (29) and (29.1) of Rule 66 provide (italics added):

(29)      Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a)   if the time spent on the hearing of the trial is one day or less, $5 000;

(b)   if the time spent on the hearing of the trial is more than one day, $6 600.

(29.1)   In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

Rules 37 and 37A have been repealed and replaced with Rule 37B.

[14]        In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66.  By October 2008, the parties themselves realized that two days would not be sufficient for trial.  Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence).  Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed.  I did not consider counsel were inefficient in their use of time.  I am satisfied that the length of the trial itself constitutes “special circumstances” in this case.  See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.

[15]        In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.

The second issue worth noting were the costs consequences under Rule 37B.  The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward.    Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:

19]        Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided?  Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, at para. 24.  Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial. 

[20]        The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness.  However, there were serious risks in that strategy.  Dr. McPherson was very closely tied to ICBC, and had been for over a decade.  This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson.  As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert.  Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court.  His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare.  As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own.  In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle.  The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial.  A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided.  This factor supports the plaintiff.

[21]        The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer.  This factor also supports the plaintiff.

[22]        With respect to the relative financial circumstances of the parties, I consider this factor neutral.

[23]        Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.

Jury Trials and Your ICBC Injury Claim

Written by admin on . Posted in Civil Procedure, Jury Trials. 121 Comments on Jury Trials and Your ICBC Injury Claim

Personal Injury Trials carry a certain element of risk with them.  Typically there are 2 competing medical theories with respect to the extent of injury and connection to trauma.  Additionally there is often disagreement as the value of damages for these injuries by the lawyers involved regardless of which sides medical evidence is accepted.  Furthermore a certain injury can be valued differently by different judges but varying results may be acceptable provided the compensation rests within the conventional range of damages for similar injuries.  All of this adds to the risk of trial and the difficulty of attaching a specific value to any given ICBC claim for pain and suffering.
Injuries can best be valued in ranges and the best one can do to determine the likely range of an ICBC pain and suffering claim is to look to previous court judgements for guidance.   Judges have to give reasons for their verdict, summarize the evidence they accept and award a specific figure for non-pecuniary loss.  If you look up enough similar cases you may be able to come up with a range of potential damages for pain and suffering for categories of injuries.  (click here for a previous discussion of some of the factors that go into valuing pain and suffering in BC tort claims)
Jury trials carry an additional element of risk in BC Personal Injury Claims.   One of the main reasons why jury trials are less predictable than judge alone trials is because jurors are not permitted to be given a range of damages for non-pecuniary loss by the lawyers arguing the case.  The BC Court of Appeal imposed this restriction on lawyers and this remains the law in BC.
In your typical ICBC claim that heads to trial with a jury 8 members of the public with little or no experience attaching a dollar figure to pain and suffering will be asked to value a Plaintiff’s injury.  These 8 members of the public will not be given guidance from the Court or from the lawyers involved as to what an appropriate range of damages is.  This may sound strange but its true.  Without referencing precedent its easy to understand how different juries can have wild swings in the amount of money they award a plaintiff for pain and suffering in an ICBC injury claim.
Reasons for judgement were released today by the BC Supreme Court illustrating the type of low award juries can award in ICBC Claims.
In today’s case (Cairns v. Gill) the Plaintiff sued for damages as a result of a 2005 BC Car Crash.  Madam Justice Gill, the presiding trial judge, summarized the evidence led by the Plaintiff at trial as follows:

[3]           The injuries sustained by the plaintiff were, in a relative sense, of a minor nature.  Ms. Cairns testified that her neck was sore immediately after the accident and she developed a headache.  By the next day, she also had pain in her shoulders.  She went to a drop-in clinic and was given a referral to massage therapy, but she did not attend because such therapy had not assisted in the past.  Some time after the accident, she began to feel pain in her low back.  It was Ms. Cairns’ evidence that her headaches lasted for several months and her neck and shoulder pain persisted for approximately one year.  Her low back pain resolved approximately a year and a half after the accident.  As to the frequency of her pain over the periods in question, she testified that she had pain on a daily basis for one or two weeks and thereafter, it came and went.

[4]           Ms. Cairns testified that her injuries precluded her from engaging in certain activities such as walking, running and attending aqua fit classes and affected her ability to lift and carry.  Her inability to engage in pre-accident activities also led to weight gain.  At the time of the accident she was employed at The Brick and was attending university.  It was her evidence that she missed two days from work, one immediately after the accident and the second, some time later. 

 In today’s case the jury awarded a mere $500 for the Plaintiff’s pain and suffering.  Granted it is unknown whether the jury accepted or rejected the Plaintiff’s evidence of injury, however, assuming it was accepted one would be hard pressed to find a judgement this low by a BC Supreme Court judge for similar injuries.

Perhaps if the jury was given a range of damages for similar injuries the Plaintiff would have received a better result.  Perhaps if the jurors knew what was typically awarded for such injuries their award would have been in the more conventional range.   Maybe none of this would have made a difference in the Plaintiff’s case but it just seems to make good sense to let juries have the same information judges have when it comes to valuing pain and suffering.  What are your thoughts?

ICBC Claims, Pre-Trial Costs and Rule 66

Written by admin on . Posted in Civil Procedure. 74 Comments on ICBC Claims, Pre-Trial Costs and Rule 66

If you are involved in an ICBC claim under the fast track rule in BC Supreme Court (Rule 66) and settle your claim prior to trial how much are you entitled to for pre-trial Tarriff Costs?
Rule 66(29) governs and reads as follows:

Costs

(29)  Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a) if the time spent on the hearing of the trial is one day or less, $5 000;

(b) if the time spent on the hearing of the trial is more than one day, $6 600

On the face of it, it appears that when a case settles pre trial up to $5,000 in costs could be included. However, recent court cases have applied a restrictive interpretation to this rule limiting the amount of pre-trial costs available in a Rule 66 action.   These cases have limited the amount of pre-trial costs available to $3,400.  Today, a case from the BC Supreme Court, Vancouver Registry, was released confirming this restrictive interpretation.

In today’s case (Cathcart v. Olsen) the Plaintiff settled her claim pre trial for an amount plus Tarriff costs.  At issue was how much should be paid for pre-trial Tarriff Costs.  Registrar Sainty of the BC Supreme Court,  in finding that the plaintiff was entitled to $2,890 in tarriff costs summarized the law and reasoned as follows:

[12]        The defendants argue that costs ought to be assessed as a proportion of the maximum allowable for pre-trial preparation under Rule 66, being $3,400. That proportion they say ought to depend on at what the stage in the proceedings the matter settled and how much pre-trial work remained to be done had the matter not settled. This, the defendants argue, is the required result applying the decision of Pittfield, J in Bowen v. Martinec, 2008 BCSC 104. In that case His Lordship was asked to answer the following question:

Where a formal offer to settle made under Rule 37 of the Rules and in Form 64 is accepted before trial in an action to which Rule 66 of the Rules applies, are the costs in the action assessed by reference to the fixed scale of costs under Rule 66(29) of the Rules or by reference to Appendix B to the Rules?

[13]        In answering the question put to him, His Lordship reviewed the law including the decisions of Macaulay, J in Duang and the Court of Appeal in Anderson (both supra) and held:

[21       In my opinion, the principles that can be derived from Duong and Anderson should be applied in the determination of costs in circumstances where an offer has been accepted before the commencement of trial. It is evident from Rule 66 that a cap has been imposed upon the recovery of costs in an action to which the Rule applies. It is also clear that the court can give effect to Rule 37 offers to settle. I am unable to identify any reason why the Rule 66 regime should apply in respect of the determination of costs following a trial where offers to settle have been made and rejected, but those situations where an offer is made and accepted before trial should justify taxation under Appendix B.

[22]      I adopt the view expressed by Macaulay J. which is that the amount of recoverable costs stipulated in Rule 66 should be allocated in part to trial and in part to pre-trial preparation. The part allocable to trial should be determined by deducting the global costs contemplated in respect of a one-day trial from the global costs contemplated in respect of a two-day trial. The costs for pre-trial preparation in either case should be determined as the difference between the global cost amount for a one-day trial and the daily trial costs. As the Rule presently stands, the recoverable costs per day of trial are $1,600, and the recoverable costs attributable to pre-trial preparation, $3,400.

[14]        His Lordship then stated:

[24]      It will be incumbent upon the parties to agree on the proportion of the pre-trial preparation which had been undertaken by the plaintiff to the date of the defendant’s offer to settle. In the absence of an agreement, the parties may resolve differences on taxation, whereupon the court will exercise the discretion conferred upon it by Rule 66(29.1).

[25]      It follows that the answer to the stated case is that costs in an action subject to Rule 66, settled before trial pursuant to an offer of settlement must be assessed by reference to the fixed scale of costs under Rule 66(29), and not by reference to Appendix B to the Rules of Court.

[15]        Essentially Pitfield J’s decision mandates that, where a formal offer to settle has been made in accordance with the Rules, pre-trial costs are to be based on the proportion of pre-trial preparation that has been undertaken up to the date of the offer to settle and the party to whom costs are to be paid is entitled to its proportionate share of the $3,400 cap. Mr. Chaudhary, for the defendants, argues that the same principles ought to apply in these circumstances where, although no formal offer to settle was made, an informal settlement was reached. He submits that I ought not to deviate from the methodology proposed by Pitfield, J. in Bowen (supra).

[16]        Mr. Harbut, for the plaintiff, suggests however that Pitfield, J’s decision in Bowen cannot be reconciled with the decision of the Court of Appeal in Anderson.  He submits Anderson should be read to say that, while there is a ceiling in the amount of costs that a successful litigant may be awarded, where a Rule 66 action has been settled, provided the party whose costs are being assessed can satisfy the assessing officer that that party would be entitled, under Appendix B of the Rules, to at least the amount of the ceiling ($3,400) in tariff items then that party is entitled to be awarded the full amount of that ceiling. I cannot agree with this latter submission. In my view, I am bound to employ the same reasoning as that employed by Pitfield, J in Bowen to these circumstances; i.e. award the plaintiff his proportionate share of the cap, based on the stage of preparation reached as at the date of the offer to settle.

[17]        That being said, there is one additional issue which must be considered. In Anderson, the Court of Appeal states (at ¶47):

I also agree with Macaulay, J that the intent of the rule [Rule 66] was to avoid the necessity of a taxation and that it would frustrate that intent to order a taxation of costs under the rule…

[18]        Accordingly, the Court of Appeal has endorsed the presumption that the intent of Rule 66 is to avoid the necessity of an appearance before the registrar to assess costs. Pitfield, J’s method – to determine costs dependant on the stage of the pre-trial preparation – seems to me to invite assessments, rather than reduce them. I say this as, in instances where the parties cannot agree on the proportion of work undertaken at the time of settlement, taxation becomes the likely, rather than the unlikely, course.

[19]        To counterbalance this, however, I believe that the Court of Appeal in Anderson has also endorsed a somewhat “rough and ready” manner of assessing the consequences of accepting an offer to settle when the provisions of Rule 66 apply (see paragraph 49). The Court of Appeal suggests that an assessing officer, on an assessment of costs in similar circumstances, should use a rough and ready approach to establish what stage the proceeds were at when settlement was reached in deciding what proportion of the “cap” ought to be paid. That rough and ready approach (and the one I will employ here), in my view includes both a consideration of the work done to the date of settlement by the party to whom the costs are to be paid as well as a consideration of what costs the payee might be entitled to under the tariff if costs were awarded under Appendix B of the Rules.

[20]        Mr. Harbut stated that his pre-trial preparation had progressed to a great extent when the offer was accepted. He confirmed that the items that had been undertaken included commencing the action, discovery of documents, some examinations for discovery, settlement negotiations and production of expert reports. He argued that, with the exception of the actual trial, most of the trial preparation had been completed. Thus the plaintiff should be awarded substantially all of the amount of the cap.

[21]        Mr. Chaudhary in his submissions set out a number of items that remained to be done (additional document discovery, witness preparation, further expert’s reports, to name a few) and argued that as this action settled some four months before trial a substantial amount of work remained to be done and the proportion awarded should reflect that.

[22]        Here, I am satisfied that some 85% of the work required to prepare for trial had been done up to the date that the offer was accepted. Accordingly, the plaintiff is entitled to $2,890 in “tariff” costs plus applicable taxes, together with such disbursements as have been agreed between the parties. In my view a substantial amount of work had been done to prepare for the trial. In addition, had the costs been awarded under Appendix B of the tariff the plaintiff would likely have received at least 10 units under item 1B, 2 to 3 units under item 3, 2 to 3 units each under items 7 and 8, 4.5 units under items 14 and 15, 2 or 3 units under each of Items 13A and 13B, plus 5 units for item 34 resulting in, on a rough and ready calculation, of some 31 to 35 units, well within or certainly more than I am awarding in these circumstances.

[23]        If the parties require a certificate they may prepare it, each sign it and forward it to me for my signature.

One More Rule 37B Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 55 Comments on One More Rule 37B Case

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, giving more interpretation to Rule 37B in ICBC Injury Claims (click here to read my previous posts on this topic).
In today’s case (Smagh v. Bumbrah) the Plaintiff was injured in a 2004 motor vehicle crash.  The defendant made an offer to settle the case for $20,000 plus costs and disbursements in 2006.  This offer was rejected and the plaintiff proceeded to trial.  After a 10 day jury trial in early 2009 damages of $2,200 were awarded.
The defendant applied for double costs from the date of the offer onward.  Mr. Justice Kelleher refused to grant this motion however he did award the Defendant costs from the date of the offer onward.  In doing so he made the following observations about Rule 37B:

[7]                Rule 37B came into force in July 2008.  It is common ground that Rule 37B applies, even though the offer was made before Rule 37B came into effect.  Subrules (4), (5), and (6) are relevant here:

Offer may be considered in relation to costs

(4)        The court may consider an offer to settle when exercising the court’s discretion in relation to costs.

Cost options

(5)        In a proceeding in which an offer to settle has been made, the court may do one or both of the following:

(a)        deprive a party, in whole or in part, of costs to which the party would otherwise be entitled in respect of the steps taken in the proceeding after the date of delivery of the offer to settle;

(b)        award double costs of all or some of the steps taken in the proceeding after the date of delivery of the offer to settle.

Considerations of court

(6)        In making an order under subrule (5), the court may consider the following:

(a)        whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date;

(b)        the relationship between the terms of settlement offered and the final judgment of the court;

(c)        the relative financial circumstances of the parties;

(d)        any other factor the court considers appropriate.

[8]                Here the defendant seeks an award of double costs pursuant to Rule 37.  I turn to the considerations in Rule 37B (5)(b) and (6).

(a)        Whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date.

[9]                The plaintiff argues that, at worst, costs should only be awarded to the defendant commencing November 6, 2008.  That is when the defendant forwarded the report of Dr. Matushak, an orthopaedic surgeon who conducted an independent medical examination and whose report was not favourable to the plaintiff.  Before that time the plaintiff had the reports of her family doctor and two specialists.  All three of these physicians were supportive of her claim that her symptoms were related to the accident.

[10]            The difficulty with this submission is that these three reports were based on an acceptance of what the plaintiff told them.  Simply put, the jury did not believe what these physicians believed.

[11]            I conclude that the offer ought reasonably to have been accepted one week after it was made. 

(b)        The relationship between the terms of the settlement offered and the final judgment of the court

[12]            This factor favours an award of costs to the defendant.  The jury awarded an amount substantially less than the defendant’s offer.

[13]            However, this factor is not in itself determinative.  Decisions on damages by juries are somewhat more difficult to predict than assessments by judges.  Madam Justice Humphries put it this way in Lumanlan v. Sadler, 2009 BCSC 142, [2009] B.C.J. No. 224, at para. 35:

As well, an assessment of non-pecuniary damages, as every trial judge knows, is a difficult and somewhat subjective task, as hard as one tries to be consistent with other judgments.  A jury verdict can, of course, be even more disparate when compared to assessments by judges.

[14]            I agree with counsel for the plaintiff that the court should be cautious in placing too much weight on this factor.

(c)        The relative financial circumstances of the parties

[15]            The plaintiff is in difficult financial circumstances.  There is no evidence regarding the defendant’s financial position.  Counsel for the plaintiff argues that it is appropriate to consider the relevant circumstances of Ms. Smagh and the Insurance Corporation of British Columbia, which defended the action on the plaintiff’s behalf.  She relies on Radke v. Parry, 2008 BCSC 1397, 64 C.P.C. (6th) 176, where Madam Justice Boyd made note of the “substantial disparity in financial circumstances between the parties”: at para. 42.  Her Ladyship went on to state at para. 42:

The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff.

[16]            A different view was expressed in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, where Hinkson J. made the following comments:

[32]      Second, [the plaintiff] places her financial position against that of ICBC, as opposed to that of the defendants.

[33]      While I accept that it is likely that most drivers in British Columbia are insured by ICBC, the wording of subrule 37B does not invite consideration of a defendant’s insurance coverage.  There may be good policy reasons for this.  Insurance coverage limits with ICBC are not universal, and will vary from insured to insured.  Certain activities may result in a breach of an individual’s insurance coverage, or the defence of an action under a reservation of rights by ICBC.  A plaintiff will not and likely should not be privy to such matters of insurance coverage between a defendant and ICBC.

[34]      The contest in this case was between the plaintiff and the defendants, and the insurance benefits available to the defendants do not, in my view, fall within the rubric of their financial circumstances, any more than any collateral benefit entitlement that a plaintiff may have would affect that person’s financial circumstances for the purpose of determining their loss.

[17]            In Abma v. Paul, 2009 BCSC 60, [2009] B.C.J. No. 87, Madam Justice Gropper agreed with the reasoning in Bailey.  She distinguished the different circumstances in Radke, where the defendant accepted the plaintiff’s offer after 11 days of trial.

[18]            The decision in Bailey was also followed in Kanda v. Jackson (19 December 2008), Vancouver M030259 (S.C.)).

[19]            Although the matter is not settled, the emerging consensus appears to be that the financial position of ICBC is not determinative.  As Butler J. said in Arnold v. Cartwright Estate, 2008 BCSC 1575, 86 B.C.L.R. (4th) 99, at para. 23:

[T]here will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[20]            This third factor is not helpful in this case.

(d)        Any other factor the court considers appropriate

[21]            While the relative financial positions may not be determinative, I am prepared to consider the financial circumstances of the plaintiff.  They are poor.  She invested in a laundry business which has now failed.  The lender holds a claim over her home.  As well, she is responsible for some or all of a $62,000 personal guarantee given in connection with the business.

[22]            The plaintiff has begun working at a small firm on an as-needed basis for $11 per hour.  She is unable to pay her bills.  She owes her law firm some $40,000 for disbursements.  These circumstances militate against an award of double costs.

[23]            I conclude that the plaintiff is entitled to costs up to November 2, 2006.  The defendants are entitled to costs, but not double costs, from November 2, 2006, to date.

[24]            There has been mixed success on this application for costs.  No costs are awarded in connection with this application.

Medical Records and ICBC Injury Claims

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

ICBC Injury Claims tend to be record heavy.  It is important to understand the types of records that are typically used in ICBC claims and how these records can be used.
One of the most frequent records reviewed and used by lawyers involved in these cases are clinical records of treating physicians.  These records can be a rich source of information documenting a person’s complaints of injury, course of improvement, medical advice prescribed and other useful information.
When ICBC claims proceed to trial these records are often put to some use by the lawyers involved.  The extent to which each lawyer can use the records varies.  For example, a Plaintiff’s lawyer usually can’t use the records to corroborate the Plaintiff’s evidence at trial as doing so can offend the rule of bolstering a clients credibility by leading evidence of ‘prior consistent statments’.
ICBC Defence lawyers, however, often use prior recorded statements when cross-examining a Plaintiff with respect to injuries sustained in an ICBC claim.  This is one of the most frequent uses made of clinical records in ICBC claims.
It is important for lawyers and clients alike to understand the use that can be made of clinical records at both examinations for discovery and trial in their ICBC Injury Claims.
Reasons for judgment were released today by the BC Court of Appeal shedding light on this topic.   In today’s case the Plaintiff was awarded damages as a result of a 2005 motor vehicle collision.  The defendant appealed claiming that the damages awarded were excessive in the circumstances and that the trial judge made several errors.  In dismissing the appeal the BC Court of Appeal noted that while some errors were made none of these prejudiced the Defendant in the trial.  In doing so the court made some comments on the use to which clinical records can be made at trial.  I reproduce the highlights of this discussion below:

Medical Records Issues

[7]                During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit.  Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing.  Dr. Dwyer testified that he would have noted such complaints if they had been made to him.  Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.  The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms.  He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor.  The trial judge considered the plaintiff’s statements to be hearsay.  He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”

[8]                The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):

I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance.  Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful.  It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment.  These notes are not made for investigative and litigation purposes.  If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

Physicians are not investigators.  They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes.  The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness.  It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

[Emphasis added]

[9]                The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest.  This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors.  The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest.  Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.

[10]            I do not read the trial judge’s reasons as categorically rejecting the admissibility of clinical notes as a general proposition.  Rather he addressed the evidentiary weight of the notes.  I think that he went too far in the sentence underlined above when he stated that clinical notes are not made for investigative and litigation purposes.  That overlooks the fact that all of the medical doctors who testified, apart from Dr. Dwyer, were retained to provide independent medical opinions for the purposes of litigation.  Complaints of symptoms by a plaintiff to doctors must be supported by confirmation of those symptoms by the plaintiff’s testimony in court to provide an evidentiary foundation for the medical opinions; see, for example, Lenoard v. B.C. Hydro & Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.).  Nonetheless, the accuracy of the doctors’ record of complaints is important to their opinions, and to that extent accuracy has obvious litigation implications.

[11]            While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms.  In effect, the defendant is contending for an admission by omission.  In my view, that overstretches the limits of the admissions exception in the circumstances here.  The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony. 

[12]            Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony.  For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident.  The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity.  I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.

 

One More Rule 37B Case – Formal Settlement Offers and Expiry

Written by admin on . Posted in Civil Procedure.

I just came across reasons for judgement pronounced on February 10, 2009 by the BC Supreme Court, Chilliwack Registry, but just recently transcribed dealing further with Rule 37B (click here to read my previous posts on this rule).
In this case (Smith v. Tedford and ICBC) the Plaintiff made an offer to settle her ICBC Case 10 days before trial.  The offer did not contain an expiry date in it.  The offer was not accepted by ICBC before trial but on the 6th day of the scheduled 15 day jury trial ICBC purported to accept the offer.   The Plaintiff’s lawyer, wishing to proceed with the trial,  argued that the offer could not be accepted after the commencement of trial.  Mr. Justice Grist held otherwise and found that the acceptance was viable.
The principle to take from this judgment is that if you want to have a certain expiry date in your offer to settle under Rule 37B this end date should specifically be incorporated into the written terms of the offer.
The judgement is very short and to the point and for the convenience of my readers I reproduce it below:

[1]                THE COURT:  The issue at this juncture, day 6 of a 15-day civil jury trial, is the effect of the defendants’ purported acceptance of the plaintiff’s offer to settle made January 23rd, 2009, ten days prior to commencement of the trial.

[2]                The defendants’ position is that under Rule 37B, there is no limitation requiring acceptance of an offer prior to trial as used to exist under Rule 37(13).  Further, there was no time for acceptance stipulated in the offer itself and accordingly, the offer remained open for acceptance.

[3]                The plaintiff disputes that a settlement follows the acceptance and argues that the new rule impliedly incorporates the earlier provision for expiry on the commencement of trial.

[4]                I do not find that to be the case.  There is no conflict inherent in Rule 37B(2) requiring the interpretation the plaintiff suggests.

[5]                The Plaintiff also argues that on common law principles, a reasonable time for acceptance has expired.  I am referred to the decision of Mr. Justice Curtis in Morrow v. Outerbridge(phonetic), unreported, which apparently follows this logic in rejection of a purported acceptance of an offer to settle communicated 18 days into a 20-day trial.  The defendant, in reply, refers to authority under the old rules which suggests that common law principles may not apply to the offer and acceptance process regulated by the rules.  However this may be, I do not think the common law principle argued here indicates an expiry by effluxion of time, in any event.  The offer was ten days prior to trial, a trial which has not yet proceeded to conclusion of the plaintiff’s case.  This, on the face of it, in my view, does not present such an unreasonable delay as to deem an offer, unconditional on its face, lapsed through the effluxion of time.

[6]                The plaintiff argues that the purpose of the offer process is to settle litigation and that this objective is not advanced by allowing a “wait and see” stance by the opposite party.  There may be some force to this, but the remedy is in the hands of the party wanting to avoid this outcome through the structure of the form of the offer, as is now available under Rule 37B.  Further, avoidance of the length of litigation of itself may also have a similar form of a social benefit and the fact that costs may be doubled for the interrupted trial process, continues to be a benefit to the party making the offer.

[7]                The new rule has, I think, two main characteristics not evident under the earlier enactment.  First, the parties are free to structure offers of settlement as they consider appropriate to the case.  And secondly, a generally greater degree of judicial discretion can be employed in the order of costs to be crafted in the circumstances presented by the offer and acceptance process.

[8]                The first of these characteristics frees the parties from the strictures that were evident in the prior rules.  If I were to find implied rules built into the new enactment, the obvious attempt to try and move away from the problems those strictures presented, would be to a degree, defeated.

[9]                Accordingly, I find the acceptance to be viable and to have the effect of settling the issues outstanding in this litigation.