Uncategorized – Page 138

BC Court of Appeal: No Litigation Privilege During Investigative Stage

Written by admin on June 10, 2010. Posted in Civil Procedure, Uncategorized.

As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side. In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.
If a document was made for multiple reasons (ie – investigating a potential claim and defending against a potential claim) the law will likely require disclosure. Today the BC Court of Appeal released useful reasons summarizing this area of law.
In today’s case (Mathew v. Delta School District #37) the Plaintiff ‘slipped and fell on some ice at a school’. Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred. The Plaintiff started a lawsuit and asked for these. The Defendant refused to produce these claiming they were privileged. The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘. The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

[12] The investigatory stage was discussed in Hamalainen as follows:

[26] Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

[13] It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.

The Problem With Losing An ICBC Injury Claim at Trial

Written by admin on June 10, 2010. Posted in BC Supreme Court Costs Cases, Uncategorized. 60 Comments on The Problem With Losing An ICBC Injury Claim at Trial

When Plaintiffs have their injury claim dismissed in the BC Supreme Court, not only do they get nothing to compensate them for their injuries, they actually end up having to pay the Defendant money. How can this be? The reason is something called “costs“. Generally speaking, the loser has to pay the winner’s Court costs and disbursements.
So how much money are we talking about here? The answer is thousands, sometimes tens of thousands, sometimes even over one hundred thousand dollars. Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In this week’s case (Pearlman v. Atlantic Trading Company Ltd.) the Plaintiff was involved in a motor vehicle collision in 2004. He sued the party he claimed was responsible for his injuries. He also sued ICBC alleging that ICBC “had requested a medical report from his family doctor whose authorization to provide the report had been revoked by the Plaintiff.”.
A jury dismissed the Plaintiff’s first claim and a Judge dismissed the Plaintiff’s second claim. ICBC was awarded their Court costs. The BC Supreme Court assessed these at $66,000 for the two claims combined. The Plaintiff then appealed these costs awards. Madam Justice Gropper dismissed the Plaintiff’s appeals and upheld the awards.
While this case does not contain any unique or novel principles of law, it is worth reviewing because it demonstrates the stark realty that people can pay a very high price if they are on the losing end of an ICBC claim in the BC Supreme Court.
If you are interested in more information on costs consequences in BC Supreme Court injury lawsuits you can click here to read my archived posts on this topic.

There is Nothing "Mild" about Mild Traumatic Brain Injury

Written by admin on June 9, 2010. Posted in ICBC Brain Injury Cases, Uncategorized. 2 Comments on There is Nothing "Mild" about Mild Traumatic Brain Injury

Traumatic Brain Injuries (TBI) are generally categorized as Mild, Moderate and Severe. Despite what the name suggests, there is nothing necessarily “mild” about the effects of a mild traumatic brain injury (MTBI). Reasons for judgement were released today by the BC Supreme Court, New Westminster registry, doing a great job explaining this.
In today’s case (Cikojevic v. Timm) the Plaintiff was injured in a 2002 crash. She was 17 at the time. She was a passenger in a truck that drove off the road and hit a tree. The force of the collision “threw her head into the windshield hard enough to star it“.
All of the medical experts that examined the Plaintiff (both her own and those hired by ICBC) agreed she suffered a mild traumatic brain injury in this crash. The consequences of this never fully resolved and the Court accepted she would struggle with life long difficulties. Mr. Justice Brown awarded the Plaintiff over $1.4 million in total compensation including $1 million for her diminished earning capacity over her lifetime. The case is worth reviewing in full for the Court’s discussion of this head of damage. Prior to awarding damages Mr. Justice Brown provided the following useful quote about “mild” TBI:

[251] Although experts sometimes disagree on whether to call an injury a mild concussion or a MTBI, either term is suitable.

[252] “Mild” describes the severity of the organic injury, not its effect.

[253] Although the organic severity of an injury usually associates with the severity of symptoms, sometimes symptoms can be severe while the organic injuries to the brain are mild.

[254] Upwards of 85% of people suffering uncomplicated MTBI recover within six months. The recovery range lies between 85% and 95%, depending on the expert’s views and the literature they accept. I find that around 90% of people suffering uncomplicated MTBI recover according to scientific literature. However, as noted by Dr. Anton, such statistics are of no value when dealing with a patient who falls into the subset of people who never fully recover. Each case must be evaluated individually.

[255] The cognitive and emotional effects of MTBI can severely disable and impact the injured person’s life.

You can click here to access my archived posts of other recent BC personal injury cases dealing with Traumatic Brain Injury.

Gross vs. Net Special Damages At Trial in ICBC Claims

Written by admin on June 9, 2010. Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits, Uncategorized. 57 Comments on Gross vs. Net Special Damages At Trial in ICBC Claims

Special Damages are out of pocket expenses a Plaintiff incurs as a result of the fault of another. In an ICBC claim some of the typical special damages are costs for therapies and medication.
When a tort claim goes to trial a Plaintiff is entitled to recover their special damages from the at fault party. There is a very important exception to this in ICBC Claims, and that is if the Plaintiff’s special damages are covered by his own ‘no-fault’ insurance from ICBC an at fault defendant is entitled to reduce the amount of special damages by the amount the Plaintiff claimed or could have claimed under their own policy of insurance. (You can click here to read a previous post of mine for more background on this topic)
At trial, then, should a Plaintiff advance a claim only for expenses that have not already been covered by ICBC or should they advance a claim for all of their out of pocket expenses? Reasons for judgement were released today by the BC Court of Appeal addressing this.
In today’s case (Gasior v. Bayes) the Plaintiff was injured when his bicycle was struck by a vehicle. At trial a Jury awarded the Plaintiff $488,500. The trial judge then reduced portions of this award to account for ‘no-fault’ benefits the Plaintiff would be entitled to.
ICBC, on behalf of the defendant, appealed arguing that the trial judge was incorrect in some of her deductions. The Defendant claimed that a Plaintiff has to advance all of their special damages at trial (including money already reimbursed by ICBC) so that a proper deduction can be made after the special damages are assessed. The Court of Appeal disagreed and provided the following useful practice tip:
[17] The defendants argued that under the provisions of s. 25 of the Act, it was only appropriate for a plaintiff to advance a claim for all special damages (gross basis), allow the trier of fact to pass on this figure and make an award, and thereafter permit the defendant to deduct from such award all no-fault benefits previously advanced. This methodology has some attraction on the basis of simplicity (and avoidance of the sort of confusion that seems to have bedevilled this case). However, as pointed out by counsel for the plaintiff, when trying to conform to such methodology in a case before a jury, it becomes very difficult to avoid references to insurance and the insurer. As well, it may be difficult for a plaintiff to become aware of all expenditures paid on a no-fault basis by the insurer. If these hurdles could be satisfactorily overcome, the methodology argued for by the defendants may be preferable, but I consider that advancement of a special damages claim on a net basis can be an acceptable approach, especially in a jury trial. That methodology which will most effectively avoid the possibility of any infringement of the rule against double recovery is to be favoured and I would leave it to the good sense of counsel and trial judges to seek to achieve such result in any given case. Clear communications between respective counsel and the trial judge are essential for the achievement of such result. I would note there was some deficiency in clarity of communication in this case.

Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

Written by admin on June 9, 2010. Posted in Civil Procedure, independent medical exams, Uncategorized. 52 Comments on Defence Medical Exams – Best Expert Not Required to "Level the Playing Field"

(Update: November 14, 2011 – The case discussed in the below post in now publicly available. Master Scarth’s reasons for judgement can be accessed here)
Further to my previous posts about Independent Medical Exams in BC Supreme Court Injury Claims unpublished reasons for judgement recently came to my attention (Hou v. Kirmani BCSC Vancouver Registry, 20091119) dealing with the ability for a Defendant to have an injured party undergo multiple exams where the first defence expert feels an opinion from a second expert would be of benefit.
In this recent case the Plaintiff was a pedestrian who was apparently struck by a vehicle. She suffered “multiple injuries including traumatic brain injury“. One of her most serious injuries was a foot and ankle injury. She consented to attend a Defence Medical Exam with an orthopaedic surgeon. He provided the following opinion:
(the Plaintiff) would benefit from an opinion from a foot and ankle orthopaedic surgeon, as further surgical intervetnion may be of benefit to her and this might include surgical correction of her deformity so as to allow her to bear weight and walk short distances more appropriately. …I do not feel further passive treatment for her left foot and ankle will be of any benefit to her..
The Defendant brought a motion to compel the Plaintiff to be examined by a second orthopeadic surgeon, this time one with a specialty in foot an ankle injuries. The Plaintiff opposed arguing a further exam was not necessary. Master Scarth agreed and dismissed the motion. In doing so the Court made the following comments about the purpose and limitations of Defence Medical Exams:
…I am not of the view that Rule 30 is intended to allow follow-up on every issue which is raised by experts who examine the plaintiff.
Dr. Arthur was chosen, and I accept the submissions of the plainitff in this regard, with the knowledge that there were concerns regarding this plaintiff’s ankle. Thee is, it is fair to say, nothing new since Dr. Arthur was retained, apart from his reticence to provide an opinion. And he does not say, I do not believe, that he is not qualified to give the opinion which is missing, if it is missing. He simply says, I think it is fair to conclude, that in the best of all worlds she would be seen by an orthopaedic surgeon with a subspeciality training. In my view that is not the purpose of Rule 30.
As mentioned above, this is an unreported judgement but if anyone wants a copy feel free to contact me and I’ll be happy to e-mail a copy of the transcript.

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal

Written by admin on June 5, 2010. Posted in ICBC Liability (fault) Cases, Uncategorized.

Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway. As he approached an intersection there was a cement truck ahead of him signalling to turn right. The truck then started its turn and the cyclist collided into the midsection of the truck. The Plaintiff sued the cement truck driver. The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did. The BC Court of Appeal disagreed and dismissed the case. In dong so the Court made the following comments:

[24] In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25] The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26] Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27] I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28] In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

How Can the Same Injury Have Different Values in an ICBC Claim?

Written by admin on June 2, 2010. Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

As I’ve previously written, the exact same injuries can be valued differently by a Court when ICBC Claims go to trial. When a judge or jury awards money for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the award isn’t made by following a chart or a mathematical calculation, instead the award is made by ‘assessing‘ damages.
An assessment is just as flexible as it sounds. There is no right award for pain and suffering. While past cases (what lawyers call precedents) are instructive, they only serve to provide a ‘range‘ of acceptable awards. So long as a trial award falls within the acceptable range of damages it will not be interefered with if challenged on appeal.
In practice this means that two people with similar injuries can be awarded different amounts for their claims and both outcomes can be correct in law. Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, discussing the ranges of damages in BC personal injury lawsuits.
In today’s case (Anderson v. Cejka) the Plaintiff was involved in a 2006 rear-end crash in Parksville, BC. Fault for the crash was admitted. The Court was asked to value the Plaintiff’s claim for pain and suffering.
Mr. Justice Halfyard found that the Plaintiff suffered from a Grade 2 Whiplash Disorder which took a long time to recover. The Plaintiff sought an award between $40,000 – $50,000, ICBC submitted that an award of $15,000 – $25,000 was more appropriate. The Court went on to award the Plaintiff $20,000 for his non-pecuniary damages and in doing so the Mr. Justice Halfyard made the following comments about ranges of damages:

[84] In my opinion, previously-decided cases, even where there are some similarities with the case at bar, can only assist in establishing a general range of damages which may apply to a particular case. This is because no two plaintiffs will ever be the same in age, previous state of strength and health, occupation and other activities. Moreover, the injuries (or combination of injuries) sustained by one plaintiff will never be the same as those incurred by another, in kind or severity. Additionally, the reaction of any two persons to the pain of a similar injury or to particular treatments will rarely if ever be the same. Other differentiating features may be the apparent length of the recovery period and, if the plaintiff has not recovered, the kind and extent of residual effects remaining from the injury at the time of trial, and whether any of the effects will be permanent.

[85] I have reviewed the cases cited by counsel, in light of the facts which I have found. Due to significant differences, I see no useful purpose in discussing them. There is no legal formula which can be used to measure the amount of pain and suffering and loss of enjoyment of life that a plaintiff has experienced as a result of an injury caused by the defendant. In my opinion, the range of damages for non-pecuniary loss in this case is the range suggested by Mr. Dreyer, namely, $15,000 to $25,000.

[86] The pain suffered by the plaintiff was never serious. He himself consistently described its severity as being one or two on a scale of ten. Within a few months after the accident, the symptoms became intermittent. Eventually, they became few and far between. The plaintiff was never disabled by the pain, to any significant extent. I must be careful not to penalize the plaintiff for being stoical in the face of pain. But I do not find that this is the case here. I award $20,000 for this head of damages.

When trying to determine how much your personal injury claim is worth the best thing you can do is read as many cases as you can dealing with similar injuries so you can determine a realistic range for your injuries.

Non-Pecuniary Damages for Fibromylagia Assessed at $110,000 in ICBC Claim

Written by admin on June 2, 2010. Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized.

(Update March 19, 2012 – The Below Decision was modestly modified by the BC Court of Appeal in reasons for judgement released today, reducing the claim for future care by $32,115. The other trial findings were left intact)
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $1.4 million in total damages for injuries and loss suffered as a result of a BC car crash.
In today’s case (Shapiro v. Dailey) the Plaintiff was involved in a 2005 intersection crash. The Defendant driver had been drinking earlier in the day and was operating the vehicle without permission of its owner. Fault was not admitted but the Defendant driver was ultimately found 100% responsible for the crash.
The Plaintiff was 23 years old at the time of the crash and 29 by the time of trial. The Court heard from a variety of expert physicians who all agreed the Plaintiff suffered “serious injuries“. The Court concluded that the Plaintiff did indeed suffer serious and permanent injureis and would struggle to earn a competitive living throughout her career. Mr. Justice Grauer awarded $110,000 for non-pecuniary damages and $900,000 for diminished earning capacity. In reaching the award for non-pecuniary damages the Mr. Justice Grauer made the following findings:

[58] On the whole of the evidence, I am satisfied that, as a result of the motor vehicle collision that is the subject of this action, Ms. Shapiro suffered soft tissue injuries to her cervical, lumbar and sacral spine that, through no fault of her own, have left her with:

· disabling cervicogenic headaches, and periodic headaches of a migraine nature;

· chronic pain disorder, manifesting itself as myofascial pain syndrome and post-traumatic fibromyalgia syndrome;

· depressive symptoms falling short of depressive disorder;

· mood disorder including resolving post-traumatic stress disorder, anxiety disorder and panic attacks;

· mild, but not insignificant, cognitive difficulties in concentration and memory.

[59] Whether some of these diagnoses overlap in terms of their symptomatology matters not. What is clear is that Ms. Shapiro genuinely suffers from the symptoms, and that the whole is greater than the sum of its parts. This has wrought a profound change in every aspect of her life, from interpersonal relationships with her family, friends and partner to her ability to love, work, play, exercise, relax, sleep, and her ability to move forward with her life. I find that her prognosis is not hopeless, but is extremely guarded. Although Ms. Shapiro is the type of person who will work hard to achieve as much improvement as is possible, I am satisfied that, on a balance of probabilities, nothing more than a modest improvement can reasonably be expected. Accordingly, at the age of 29, Ms. Shapiro faces a lifetime of struggling with pain and fatigue in everything she does.

[60] I have considered the authorities to which counsel referred me, including Dikey v. Samieian, 2008 BCSC 604; Alden v. Spooner, 2002 BCCA 592, 6 B.C.L.R. (4th) 308;Prince-Wright v. Copeman, 2005 BCSC 1306; La France v. Natt, 2009 BCSC 1147; Pelkinen v. Unrau, 2008 BCSC 375; Whyte v. Morin, 2007 BCSC 1329; Niloufari v. Coumont, 2008 BCSC 816, varied 2009 BCCA 517; and Unger v. Singh, 2000 BCCA 94.

[61] Each case must, of course, be assessed on its own facts. Considering all of the circumstances, including her age at the time of the accident (23), the toll her injuries have taken on her, and her prospects for the future, I consider Ms. Shapiro’s plight to be considerably worse than that of, for instance, the older plaintiff in the recent decision of La France($80,000) and worse than the older plaintiff in Prince-Wright ($100,000). I have considered as well the very recent decision of the Court of Appeal in Poirier v. Aubrey, 2010 BCCA 266, where the 38-year-old plaintiff’s non-pecuniary damages were increased to $100,000. I assess Ms. Shapiro’s non-pecuniary damages at $110,000.

This decision also has a useful discussion of the law of ‘diminished earning capacity‘ and ‘failure to mitigate’ and is worth reviewing in full for the Court’s comments on these areas of law.

If you’re researching the non-pecuniary value of post traumatic fibromyalgia cases you can click here to access my recent archived posts.

ICBC Injury Claims and Witness Statements; Getting Proper Disclosure

Written by admin on June 1, 2010. Posted in Civil Procedure, Uncategorized.

Further to my recent post on this topic, often after serious motor vehicle collisions ICBC sends adjusters out to collect statements from the parties and known witnesses to the event.
When a lawsuit for compensation is brought by an injured party ICBC sometimes does not disclose the witness statements to the Plaintiff on the basis of ‘litigation privilege‘. Being a monopoly insurer, ICBC investigates claims and our Courts have consistently held that if the statements were obtained during the ‘investigation‘ stage ICBC’s claim of ‘litigation privilege‘ will fail and the documents will have to be disclosed. Reasons for judgement were released this week with helpful comments addressing this area of the law.
In this week’s case (Sauve v. ICBC) the Plaintiff was injured in 2008 motor vehicle collision. After the collision ICBC hired an independent adjuster who obtained witness statements and also provided ICBC a report in which she sized up the various witnesses. In describing the report the adjuster deposed that she “used my expertise and experience as an Insurance Adjuster to describe each of the Witnesses, including their physical appearance, demeanor and presentation. I also provided an analysis as to the likely performance of each witness in court. I further provided analysis of the commonalities between various witness accounts for the purpose of assessing credibility and preparing the case of the Defendant, ICBC should litigation occur”
ICBC provided the Plaintiff with the witness statements but refused to provide the report claiming the protection of litigation privilege. The Plaintiff brought a motion to force disclosure. Ultimately Mr. Justice Joyce held that the reports were privileged and ICBC did not have to disclose them to the Plaintiff. Before reaching this conclusion the Court provided helpful reasons addressing the difficulty ICBC may face in claiming privilege over witness statements obtained in the immediate aftermath of a collision. Mr. Justice Joyce reasoned as follows:

[34] I turn to the second part of the test: were the documents created for the dominant purpose of assisting the defendant in the conduct of the anticipated litigation by Ms. Sauvé?

[35] Once again in answering that question, it is important to focus on when the reports were created and to consider them separate from any consideration of whether the witness statements and photographs would meet the dominant purpose test. I can certainly accept that the witness statements and photographs may well have come into existence for two purposes:

(1) to investigate the circumstances of the accident, and

(2) to assist in the conduct of litigation.

[36] Therefore, whether those documents would satisfy the second part of the test might have been a difficult question to answer. The defendant might not have been able to meet the test for the first group of documents on a balance of probabilities, but that is not the question that I have to decide.

[37] In my view, when deciding whether the reports were prepared for the dominant purpose of litigation I have to consider not only what was known by Mr. Taylor and communicated to Ms. Webber; I also have to consider what Ms. Webber knew when she prepared the reports, as well as the nature of the reports. Ms. Webber has deposed that when she prepared the reports, she believed that the dominant purpose for their creation was litigation. She came to that conclusion being aware of the information that the witnesses could give with respect to the circumstances of the accident. According to Ms. Webber, the reports consist of her descriptions of the witness, her impressions or opinions concerning their credibility and her own analysis of how the evidence of the various witnesses matched or conflicted. While it might be possible that such information might assist ICBC at the investigation stage, I am of the view that any such use of the documents would clearly be secondary to their use in assisting counsel in the conduct of the action. I am, therefore, satisfied that the reports were created for the dominant purpose of litigation and attracted litigation privilege.

In addition to the above this case contains a useful analysis of the law of waiver of privilege and ‘common interest’ privilege and is worth reviewing in full for anyone interested in these topics.