Defense Doctor Criticised For “Advocacy” and Requiring Cross Examination to “Ferret Out” Opinions

Adding to this site’s archived posts of judicial criticism of expert witness advocacy, reasons for judgment were published today by the BC Supreme Court, New Westminster Registry, rejecting a defence expert for shortcomings in their opinion evidence.

In today’s case (Soltan v. Glasgow) the Plaintiff was injured in two collisions that the Defendants accepted fault for.  In the course of litigation the Defendants retained an orthopaedic surgeon who provided opinion evidence minimizing the impact of the Plaintiff’s injuries and prognosis.  In finding it “difficult to ascribe any weight” to these opinions Mr. Justice Saunders provided the following critical comments:

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“Troublesome” ICBC Surveillance Practices Come Under the Judicial Microscope

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.

In the recent case (Williams v. Sekhon) the Plaintiff sustained serious and disabling injuries in a 2013 collision that the Defendant accepted fault for.  In the defence of the claim the Defendants insurer, ICBC, conducted a ‘troublesome‘ amount of surveillance into the Plaintiff’s life.  The Plaintiff requested that special costs be awarded for this.  While the court did not go so far as to award special costs Mr. Justice Voith provided the following lengthy comments setting parameters into what is and is not reasonable surveillance:

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Vehicle Owner Found Liable For Crash After Household Member Took Vehicle Without Permission

Reasons for judgment were published last week with an extensive discussion of the principles of registered owner vicarious liability for BC collisions.

In the recent case (Bowe v. Bowe) the Plaintiff was injured as a passenger involved in a collision.  At the time of the crash the Plaintiff took his stepfathers car keys without permission.  They lived in the same household.  The Plaintiff contacted his cousin, who lived in a separate household, and collectively they took the vehicle.  In the course of the evening  the two boys drove around for several hours before the Accident.  Both took turns driving but at the time of the crash the cousin was behind the wheel.

The Plaintiff suffered serious injuries including a moderate brain injury.  A jury found the driver negligent and the plaintiff contributorily negligent.  A question arose as to whether the registered owner bears any liability in these circumstances.

Section 86 of BC’s Motor Vehicle Act establishes vicarious liability for vehicle owners when their vehicle is being driven by a household member or by anyone who acquired the vehicle with the owners consent.  The latter test was not applicable on these facts.  The court was asked whether the household member rule was triggered in these circumstances.  The applicable provision of the MVA reads as follows:

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Speeding Bus Driver Found Faultless for Collision With Moose

Reasons for judgment were published today by the BC Supreme Court, Vancouver Registry, dismissing a negligence lawsuit against a bus driver who collided with a moose.

In today’s case (Tran v. Anderson) the Defendant was operating a Greyhound bus on June 22, 2011.  He was travelling above the posted speed limit.  A moose appeared “suddenly out of the foliage to the right of the highway, about 20 feet in front of the bus“.  The Court found that the Defendant had no time to react in these circumstances and even if was travelling at the posted speed limit the result would have been the same.

In dismissing the negligence claim Madam Justice Adair provided the following reasons:

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$86,000 Non-Pecuniary Assessment for Triggering of Symptoms in Pre Existing Degenerative Spine

Reasons for judgment were published today assessing damages for a collision resulting in various soft tissue injuries coupled with the onset of symptoms in a pre-existing degenerative spine.

In today’s case (Ryan v. Lawson) the Plaintiff was injured in a 2014 collision.  The Defendant accepted fault.  The crash resulted in a variety of soft tissue injuries many of which recovered.  THe crash also resulted in the onset of symptoms in a pre-existing albeit asymptomatic degenerative condition in the Plaintiff’s spine.  In assessing non-pecuniary damages at $86,000 Madam Justice Jackson made the following findings:

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Insurer Hit With $30,000 in Damages for “Mental Distress” For Wrongfully Denying Insurance Benefits

Reasons for judgement were published today by the BC Supreme Court, Chilliwack Registry, finding an insurance company in breach of contract and ordering them to pay, in addition to wrongfully withheld benefits, damages for “mental distress”.

In today’s case (Gascoigne v. Desjardins Financial Security Life Assurance Company) the Plaintiff was insured with the Defendant.  She became disabled in her own occupation and sought benefits.  The Defendant initially approved the plaintiff’s claim and paid LTD benefits for a short period but later took “the position that the plaintiff is not disabled and it has refused to pay further benefits.“.

The Plaintiff produced medical evidence in support of her claim.  The Defendant did not have any independent medical exams contradicting this evidence and instead relied on a medical consultant whose evidence the Court criticized as amounting “to little more than generic opinions unsupported by the evidence”.

In ordering that the Defendant pay damages for ‘mental distress’ for wrongfully denying insurance benefits Mr. Justice Skolrood provided the following reasons:

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Diminished Housekeeping Capacity Claim Assessed for “Fastidious Housekeeper”

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for diminished housekeeping capacity for a plaintiff with ‘fastidious’ housekeeping standards.

In today’s case (Broomfield v. Lof) the Plaintiff was injured in a 2014 rear end collision. Liability was admitted.   The crash resulted in a variety of injuries the most serious of which were chronic depression and somatic symptom disorder.  These resulted in a period of total disability followed by the Plaintiff being able to return to work but on a reduced basis.

The Plaintiff had restrictions in her housekeeping abilities and these were medically supported.  The Defendant opposed damages for diminished housekeeping capacity in part because the plaintiff admitted that “she was able to do what she wanted if she pushed through the pain“.  Despite this admission the court found the evidence justified damages for diminished housekeeping capacity and awarded just over $100,000 for past and future losses.  In reaching this assessment Madam Justice Young provided the following reasons:

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$130,000 Non-Pecuniary Assessment for Chronic Depression and Somatic Symptom Disorder

Adding to this site’s archives of psychiatric injury assessments, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic depression and somatic symptom disorder.

In today’s case (Broomfield v. Lof) the Plaintiff was injured in a 2014 rear end collision.  The impact was “significant” and the Defendant admitted fault.

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“Little Weight” Given to ICBC Expert Witness With “Lack of an Open Mind”

Adding to this site’s archives of expert witnesses being judicially criticized for advocacy, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, expressing reservations about the reliability of an ICBC retained expert who “became somewhat combative during cross-examination” downplayed the Plaintiff’s subjective reports of pain and showed a “lack of an open mind“.

In today’s case (Luck v. Shack) the plaintiff was injured in a 2014 collision that the Defendant accepted fault for.  The crash resulted in chronic soft tissue injuries and myofascial pain syndrome.  In the course of the lawsuit the Defendant retained an orthopaedic surgeon who provided an opinion minimizing the Plaintiff’s injuries and their relationship to the crash.  In concluding that “little weight” should be given to this doctor’s opinion Madam Justice MacDonald provided the following comments:

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$50,000 Non-Pecuniary Assessment for Chronic Jaw Injury

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic jaw injury sustained in a collision.

In today’s case (Zamora v. Lapointe) the Plaintiff was injured in a 2014 rear end collision.  Liability was admitted by the Defendant.  The crash resulted in various soft tissue injuries along with a temporomandibular joint injury.  His back, neck and jaw symptoms continued to the time of trial and were not expected to fully recover.  In assessing non-pecuniary damages at $50,000 Madam Justice Duncan provided the following reasons:

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Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

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

“Work hard, be kind and enjoy the ride!”
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