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Getting the Insurance Company's Documents; Litigation Privilege and the Trend of Increased Disclsoure

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


As I’ve previously written, litigation privilege is a principle which allows parties not to share relevant documents with the other side in a lawsuit in limited circumstances.  Despite this principle, the BC Courts seem to be favouring the trend of disclosure making it more difficult for parties not to disclose documents after lawsuits get underway.  Reasons for judgement were released last week demonstrating this trend.
In last week’s case (Beer v. Nickerson) the Plaintiff was injured in 2008 as a result of a slip and fall incident at a Pharmasave in Victoria, BC.  The Plaintiff alleged the fall occurred as a result of the Defendant’s “negligent operation of her scooter in the store“.
The Defendant contacted her insurance company after the incident.  The insurance company conducted an investigation and in the process of this obtained a statement from the Defendant, a drawing of the store prepared by the Defendants daughter, and photographs of the location of the incident.
After the lawsuit started the Defendant’s lawyer refused to provide these documents arguing they were protected by “litigation privilege“.   Master Bouck of the BC Supreme Court disagreed and ordered that these documents be produced.  In reaching this conclusion the Court reasoned that the documents were not privileged because a lawsuit was not a ‘reasonable prospect‘ when these documents were created and further that they were not created for the ‘dominant purpose‘ of use in a lawsuit.  Before reaching her verdict Master Bouck provided the following useful summary of the law:

[17] The legal principles to be applied on this application are well-settled and set out in Hamalainen (Committee of) v. Sippola (1991), 62 B.C.L.R. (2d) 254, and Stevanovic v. Petrovic, supra. Those principles are as follows:

1.  The party withholding disclosure bears the onus of establishing a claim for privilege over a document.

2.  The test for considering whether litigation privilege is established is two-fold:

(a)  Was litigation a reasonable prospect at the time the document in dispute was created?

(b)  If so, was the dominant purpose of the document’s creation for use in litigation? (commonly known as the “dominant purpose” test.)

3.  Litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all the pertinent information including that particular to one party or the other, would conclude that it is unlikely that the claim for loss will be resolved without it.

4.  However, the prospect of litigation alone is not sufficient to meet the claim of privilege. Nor does the denial of liability alone mean that all documents produced thereafter are subject to a claim for privilege. As stated by the court in Hamalainen v. Sippola:

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.

6.  It is not incumbent upon the court to accept without question the opinion of either deponent on one of the very issues that is to be decided. Whether or not litigation was a reasonable prospect is a matter for the court to decide on all the evidence.

[18] To these principles I would add that the dominant purpose test is consistent with “the more contemporary trend favouring increased disclosure”: Blank v. Canada (Department of Justice), 2006 SCC 39 at paras. 60-61.

This case is helpful in permitting Plaintiffs to obtain more fulsome disclosure early in a lawsuit.  Our Courts have made it clear that if documents are gathered by an insurance company for the purpose of investigating a claim (as opposed to defending a potential lawsuit) then these documents will have to be disclosed under the BC Supreme Court Rules.

$70,000 Non-Pecuniary Damages Assessment for Patellofemoral Knee Pain

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


Reasons for judgement were released this week by the BC Supreme Court awarding $126,000 in total damages as a result of injuries and loss caused by a 2006 BC car crash,
In this week’s case (Poulton v. Inderbosch) the Plaintiff was injured when the Defendant ‘went through a red light‘ and T-boned the Plaintiff’s vehicle on her passenger side.  Fault was admitted by the Defendant focussing the trial on the value of the Plaintiff’s claim.
The Court heard competing evidence about whether the Plaintiff suffered a knee injury as a result of the crash.  Mr. Justice Sewell decided that the Plaintiff’s knee in fact was injured.  In awarding $70,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for the Plaintiff’s injuries the Court stated as follows:
[15] The plaintiff filed a medical/legal report of Dr. McKenzie, an orthopaedic surgeon.  He examined Ms. Poulton on September 14, 2009.  Dr. McKenzie is of the opinion that Ms. Poulton has ongoing left knee pain which is likely patellofemoral knee pain as well as ongoing pain in her neck and upper back.  In his opinion her symptoms are caused by the accident including a direct blow to her knee…
[21] I conclude that Ms. Poulton did injure her left knee in the motor vehicle accident on January 27, 2006…
[26] In this case, Ms. Poulton has suffered an injury which continues to trouble her more than four years after the accident.  Given the duration of Ms. Poulton’s symptoms and the inability of any of the treating physicians to isolate an organic cause for those symptoms, I agree with Dr. Mackenzie’s opinion that the prognosis for the resolution of Ms. Poulton’s pain is poor.  There is evidence that Ms. Poulton’s headaches have significantly improved since the date of the accident and there is therefore some reason to conclude that those headaches will continue to improve.  I am also mindful of the evidence that Ms. Poulton seems to be able to function with the assistance of medications.  On the other hand, Ms. Poulton has testified that the injuries have had a significant impact on the quality of her life, particularly with respect to her ability to pursue such recreational activities as hiking and aqua size. ..
[30] I conclude that an award of $70,000 is appropriate in this case to compensate Ms. Poulton for her pain, suffering and loss of amenities of life.  In assessing these damages I have taken into account that Ms. Poulton will likely seek symptomatic relief from medication for the reasons set out in paras. 50 and 51 of these reasons.
You can click here to read my archived posts of other recent BC Court Cases awarding damages for knee injuries.

ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

Written by admin on . Posted in BC Supreme Court Costs Cases, Uncategorized. 68 Comments on ICBC Asks Court of Appeal to Address "Costs" Awards In Cases Worth Under $25,000

I’ve written many times about the fact that the BC Supreme Court Rules give trial judges a discretion to award a successful plaintiff Court Costs even if the amount awarded falls in the Small Claims Court’s Jurisdiction.
Two recent cases were released today by the BC Court of Appeal demonstrating that ICBC is interested in having the circumstances in which these awards are made limited.
In the first case (Morales v. Neilson) the Plaintiff was injured in a BC Car Crash and sued for damages.  At trial he was awarded just over $12,000.  The trial judge went on to award the Plaintiff costs despite the fact that the judgement was for an amount within the small claims courts financial jurisdiction.  ICBC asked permission to appeal but this was refused with the BC High Court holding that the Judge appropriately applied the test for discretionary costs.
The second case, however, had the BC Court of Appeal more interested.  In this case (Gradek v. DaimlerChyrster Financial Services Canada Inc.) the trial judge awarded a Plaintiff under $10,000 in total compensation as a result of a BC collision.  The Court went on to award the Plaintiff costs.  (You can click here to read my summary of the trial decision regarding costs).  ICBC asked the Court of Appeal to intervene arguing that the trial judge was wrong in considering the ‘procedural advantages‘ available in the BCSC as factors which give a plaintiff ‘sufficient reason‘ to sue in that Court when the case is worth clearly less than $25,000.  The Court of Appeal agreed to hear the case noting that this is an important issue for ICBC. Specifically the BC High Court held as follows:

[7] The issue on which the appeal is sought to be brought is a pure issue of law. It is one of statutory construction, the question being the meaning of the words “sufficient reason” in the context of Rule 57(10). The language of Rule 57(10) does not, on its face, limit “sufficient reason” to a consideration of the anticipated quantum of damages.  Even so, while I would not describe the appellant’s case as a very strong one, it does seem to me that it is arguable that “sufficient reason” contemplates jurisdictional questions (particularly the quantum of damages), and not procedural advantages.  In my view, there is sufficient merit in the appeal to warrant a hearing before a division of the Court.

[8] The issue of how the Supreme Court is to determine whether a matter is brought in that court for “sufficient reason” is a matter of general importance in litigation, particularly given that the monetary limit for Small Claims Court has expanded to $25,000. There will now be a sizable number of cases that fall below the Small Claims limit.

[9] The case is of significance to the defendant in this matter; from a practical standpoint, it is an institutional defendant involved in many cases. The case is, however, of limited significance to the plaintiff.  While the costs award is a significant proportion of the entire award received by the plaintiff, the costs of defending the appeal may significantly exceed the amount in issue.

[10] This concern is mitigated, however, by the fact that the appellant is prepared to abide by an order that it will pay the respondent’s costs on Scale 1 in any event of the appeal (it is acknowledged that the respondent would be free to argue before the Court that a higher level indemnity should be awarded).

[11] In the circumstances, I am satisfied that leave ought to be grant and that a division of the Court should hear this matter. Leave is granted. The appellant will be responsible for the respondent’s costs in any event of the appeal.

I will be sure to write about the BC Court of Appeals decision in this case once it is released.

More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, Uncategorized. 55 Comments on More on ICBC Claims and Pre-Existing Asymptomatic Conditions

Quite often when people are injured in a car crash and experience pain they have X-rays or other diagnostic images taken of the painful areas.  Often times these studies show arthritis or other degenerative changes which didn’t pose any problems before the accident.
A common defence tactic is to argue that these degenerative changes would have become painful around the time of the accident in any event and therefore the person is entitled to less compensation.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with (and rejecting) such a defence.
In today’s case (Eblaghie v. Lee) the Plaintiff was injured when she was crossing the street in a marked crosswalk and was struck by the Defendant’s car.  Fault was admitted by the driver.  The Court found that the Plaintiff suffered ‘mechanical back pain…a soft tissue injury that affected the cervical spine” and also right knee “tear in the medial meniscus and patellofemoral derangement“.
The Defendant argued that the Plaintiff’s symptoms would have manifested even without the car crash because of underlying degenerative changes.  Mr. Justice Stewart outright rejected this argument holding as follows:
[19] I find as a fact that Dr. Regan is more likely than not correct when he says, in effect, that degenerative changes in the plaintiff’s spine were present as of February 27, 2007 but if they were asymptomatic – and I find as a fact that they were – then the onset, consistency and persistence of her pain and discomfort must lead to the conclusion that as a result of the defendant’s negligence that which had been asymptomatic became symptomatic.  The only other alternative is that we are in the presence of a remarkable coincidence.  And I reject that alternative as being so unlikely that it must be ignored.  In the result, the defendant’s negligence on February 27, 2007 is the head and source of pain and discomfort in the neck and low back that plague the plaintiff to this very day.
The Court found that the Plaintiff’s symptoms of pain were likely going to continue and awarded $60,000 for her non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
The Court also had some critical comments to make with respect to the expert witness that testified for the Defendant.  The Defendant relied on Dr. Leith, whose opinion differed from the Plaintiff’s experts with respect to the cause of some of her symptoms.  Mr. Justice Stewart rejected Dr. Leith’s evidence and in doing so made the following critical comments:

[27] I must speak to the evidence of the orthopaedic surgeon Dr. Leith called to testify by the defendant.

[28] Dr. Leith’s evidence appears before me at Exhibit 13 Tab 2.  In addition, he testified before me.

[29] I found this witness’s evidence unhelpful.  There were a number of problems with his evidence and for this trier of fact the cumulative effect of these problems was such that I am not prepared to rely on Dr. Leith’s evidence on any point that actually matters.

[30] I will give a few examples of the problems I encountered.

[31] Dr. Leith’s simply dismissing out of hand the thought that overuse of the left knee as the plaintiff protected the right knee could result in damage to the left knee with resulting pain and discomfort is not “in harmony with human experience” (Cahoon v. Brideaux, 2010 BCCA 228, para. 4).  Deciding which evidence to rely upon is not simply a matter of counting heads, but – as noted above – it is a fact that two of the doctors who testified before me in effect say that Dr. Leith is simply wrong.  For this trier of fact common human experience and the opinions of the two doctors noted above carry the day.

Jury Finds Driver Faultless for Going Through Stop Sign in Icy Conditions

Written by admin on . Posted in ICBC Liability (fault) Cases, Jury Trials, Uncategorized.


I have written previously about the ‘invevitable accident‘ defence more accurately referred to as a ‘no-negligence‘ defence.  Today the BC Court of Appeal released reasons for judgement considering this area of the law in the context of a personal injury lawsuit that was dismissed by a BC Jury.
In today’s case (Bhangal v. Sloan) the Plaintiff was injured when his vehicle was struck by a pick-up truck driven by the Defendant.  The Defendant went through a stop sign without stopping.    His explanation was that he was not careless but rather could not stop due to the slope of the hill he was travelling down and ice on the roadway.  The Jury accepted this evidence and dismissed the Plaintiff’s claim finding that the Defendant was not careless in operating his truck.
The Plaintiff appealed arguing that the Jury was wrong and that their finding was one “no properly instructed jury could reach“.  The BC Court of Appeal disagreed and upheld the Jury dismissal of the personal injury lawsuit.  In reaching this conclusion the BC High Court reasoned as follows:

In Fontaine, the principle of res ipsa loquitur was put to one side as being no longer applicable in Canadian negligence law. It is no longer to be presumed that a car running off the road (or its loss of control) is attributable to the negligence of its driver. Rather, a case in negligence must be proven on both the direct and circumstantial evidence adduced, with effect being given to such inferences as the evidence properly supports.

[10] In Nason v. Nunes, 2008 BCCA 203, 82 B.C.L.R. (4th) 1, this Court discussed the effect of Fontaine on its decision in Savinkoff v. Seggewiss, [1996] 10 W.W.R. 457, 25 B.C.L.R. (3d) 1, where it had been held there was an inference of negligence on the part of a driver of a vehicle that had slid out of control into another vehicle, requiring the driver to explain how the accident could have happened without his negligence. In Nason it was said:

[14]  … If and to the extent that the Court in Savinkoff intended to establish or confirm a legal rule that negligence must be inferred as a matter of law whenever a vehicle goes off the road and that the defendant must always meet it in the manner suggested, I believe the decision has been superseded by Fontaine. Wherever the court finds on all the evidence that negligence has not been proven, or that the defendant has shown he drove with reasonable care, the defendant must succeed, whether or not he is able to “explain” how the accident occurred. This is not to suggest that an inference may not be drawn as a matter of fact in a particular case, where a vehicle leaves the road or a driver loses control; but as the trial judge stated at para. 53 of her reasons (citing Fontaine at paras. 20, 24 and 35), such an inference will be “highly dependant on the facts” of the case and the explanation required to rebut it will “vary in accordance with the strength of the inference sought to be drawn by the plaintiff.”

[11] Mr. Bhangal accepts, as he must, that no inference of negligence arises here as a matter of law, but he contends a case of negligence was made out against Mr. Sloan on the direct and circumstantial evidence adduced such that it was not open to the jury to find otherwise.

[12] I accept it is arguable that, given the severe conditions, reasonable care may have required Mr. Sloan to have tested his brakes more than he did and either to have travelled slower than the 20 kph at which he was proceeding (if he travelled at all) or to have applied his brakes and slowed down sooner than he did on approaching the intersection. The case was, however, tried before a jury who were instructed their task was to determine whether Mr. Sloan did what a reasonable and careful person would have done in the circumstances. They found that he had and, taking Mr. Sloan’s evidence at its best, I do not consider it can be said their finding was so unreasonable this Court should now intervene.

[13] Mr. Sloan was proceeding cautiously at 20 kph; he checked his brakes as he drove toward the intersection and satisfied himself they were effective; and he applied them 150 feet from the intersection fully expecting he would stop. When he lost control of his truck on the icy road, he did everything he could to alert Mr. Bhangal. The jury was evidently satisfied he had met the requisite standard of care and that the accident occurred without negligence on his part. In my view, that was a conclusion both in fact and in law that was open to them.

[14] I would accordingly dismiss the appeal.

Plaintiff Awarded Double Costs for Beating Pre Trial Formal Settlement Offer; Relevance of ICBC Insurance Considered

Written by admin on . Posted in BC Supreme Court Costs Cases, Settlement Law, Uncategorized.


In my continued efforts to track the judicial development of Rule 37B, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding a Plaintiff double costs for the trial of her ICBC claim.  The contentious issue of the existence of Insurance as a potentially relevant factor was also considered.
In today’s case (Pham-Fraser v. Smith) the Plaintiff was injured in a BC motor vehicle collision.  Before trial the Defendant (insured with ICBC) offered to settle under Rule 37B for $115,000.  The Plaintiff responded with a formal settlement offer of $149,000.  Neither party accepted the respective offers and proceeded to trial where the Court awarded just over $400,000 in total damages (click here to read my previous post discussing the trial judgement).
The Plaintiff, having comfortably beat her formal offer, asked the Court to award double costs under Rule 37B.  In granting the motion Mr. Justice Greyell held as follows:

[24] The second factor referred to in Rule 37B(6) also operates in the plaintiff’s favour.  There is a wide difference between the offer to settle and the final judgment.  The judgment is almost three times the amount offered.  The plaintiff’s offer was made because she wished to avoid court and having to give her evidence.  Some of her evidence was of a private nature relating to matters she did not wish to talk about in the public forum of a court of law (that is, how the accident affected her work and home life, her marital relationship with her husband after the accident, and the fact she suffered from incontinence).

[25] It is not necessary to consider factors set out in Rule 37B(6)(c) and (d).  I do not accept the plaintiff’s submission I ought to consider that the defendants, being represented by ICBC, are in a “sophisticated” position in terms of providing settlement instructions and that this is a factor to be taken into account and operate in the plaintiff’s favour in exercising my discretion under the rule.   The plaintiff’s argument seems to me to simply be another way of putting a “deep pockets” argument forward: an argument the courts have thus far rejected as being a factor to be considered in determining whether to award costs under Rule 37B.

[26] After considering the factors which I do consider relevant under Rule 37B, I conclude the plaintiff is entitled to an award of double costs.

As previously discussed, the BC Supreme Court is inconsistent on whether a Defendant being insured is a relevant factor under Rule 37B and clarity from the Court of Appeal would be welcome.  While more cases than not have held that insurance is not a relevant consideration it is not yet clear that this is correct.  If the law was settled it would assist lawyers in advising their clients of the potential risks and benefits of trial.

In my continued efforts to get us all prepared for the New BC Supreme Court Civil Rules I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Personal Injury Claim Dismissed in "No Impact" Collision

Written by admin on . Posted in Uncategorized.

I’ve written dozens of times about Low Velocity Impacts where Plaintiffs are injured and compensated despite being involved in accidents with little to no vehicle damage.  But what about no impact collisions, can a Plaintiff be compensated if their vehicle is not struck at all?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a claim.
In today’s case (Brooks v. Gilchrist) the Plaintiff was involved in 2 alleged motor vehicle collisions.  She sued for damages.  The first incident  occurred when the Plaintiff was stopped at a red light.  The vehicle next to hers was rear-ended by the defendant.  the Plaintiff “heard a loud sound and felt that she may have been hit as well“.  The Plaintiff claimed she was injured.
At trial the court heard evidence from ICBC estimators who inspected the various vehicles that was “no evidence of any damage or paint transfers or scrapes to the right fron of the (defendant vehicle) or the left back end of the (plaintiff’s vehicle)”.
Mr. Justice Sigurdson went on to find that there in fact was no collision and dismissed the Plaintiff’s claim for the first incident.  In reaching this conclusion the Court provided the following reasons:

[35] My conclusion on the evidence is that, in the first accident, there was no contact at all between the defendant’s vehicle and the plaintiff’s vehicle.  If any contact had been made, it would have been so minor that the vehicles would be touching, but I find, based on the evidence of the witnesses at the scene, that the vehicles were not touching after the collision.  If the vehicles were touching, the plaintiff would have made that observation at the time, rather than simply advancing the theory that the Beynon vehicle must have struck her car, a theory which she maintained until just before the trial.

[36] Further, the absence of any damage or mark or paint transfer or scuffing to the Neon or the right side of the Gilchrist truck supports the view that there was no collision between the Gilchrist vehicle and the plaintiff’s vehicle.  The Gilchrist vehicle had a tow hook at the front and the absence of damage from that also suggests the absence of any collision.  I have considered the possibility that braking might cause the tow hook to be lower, but the absence of any damage from the tow hook is consistent with the fact that there was no collision.

[37] The plaintiff was at best uncertain whether she was involved in an accident.  Perhaps the noise of a collision in her vicinity startled her and made her suspect that her vehicle had been contacted but I find on all of the evidence that it was not.  Her answer on discovery was accurate when she said: “I remember the sound more than the actual, like, feeling of the car moving.”

[38] The plaintiff’s case, at its best, is that there was a possibility that the defendant vehicle made contact with her vehicle.  However, the plaintiff has the burden of proof on that issue on a balance of probabilities, and has fallen far short of meeting that burden.

[39] Accordingly, because there was no collision involving the plaintiff, there can be no liability with respect to the first accident.

It is worth noting that while the above case failed because the court found there was no impact, there is no requirement in law for a Plaintiff to actually be struck by a vehicle in order to have a compensable claim.  This has long been recognized in ‘nervous shock‘ lawsuits.

Getting Your Time Estimate Right For Trial

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


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2–day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

The "New" New BC Supreme Court Civil Rules

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

Regular visitors to this site undoubtedly know that the New BC Supreme Court Civil Rules come into force on July 1, 2010.  These will effect every ICBC and other Personal Injury Claim prosecuted in the BC Supreme Court.
The rules are being tinkered with before they come into force and earlier this month the Lieutenant Governor in Council approved Order No. 243 which makes some changes to the New Rules of Court.  On quick review these appear to be very minor.  Kristina Oldenburg of the Courthouse libraries of BC was kind enough to provide me with a link to a PDF document containing the actual amendments.
It is rumoured that there may be a further transitional provision addressing expert witness reports commissioned under the current rules for cases that will go to trial under the new rules.  This would be a welcome development because many expert reports that comply with the current rules will not comly with the new rule addressing expert opinion evidence.  It is not an understatement to say that it will cost tens of millions of dollars to update all of these reports.  This seems like an unnecessary and fixable expense.
I will continue to address this topic as further changes are made to the New Rules.

Humerus Fracture Non-Pecuniary Damages Assessed at $110,000

Written by admin on . Posted in ICBC Shoulder Injury Cases, Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, assessing damages for a comminuted fracture involving the left humerus (shoulder injury).
(Illustration provided courtesy of Artery Studios Ltd.)
Today’s case (Legault v. Brock Shopping Centre Ltd.) involved a slip and fall injury in 2005 in Kamloops, BC.  The Plaintiff was walking towards a business known as “Penny Pinchers” in Kamloops BC.  As he approached the shopping centre his foot slipped on ice and he stumbled forward falling “into the store front window“.  He suffered various injuries, the most serious of which was a fractured shoulder.
The Plaintiff was found 50% at fault for his own injuries for “not observing the ground conditions beneath his feet as he approached the sidewalk“.  The Defendant owner was also found 50% at fault for not clearing the ice with the Court finding that “the Defendant owner failed to respond to two calls from the tenant to address the condition of the parking lot.  Responding to one of these calls would likely have appraised the owner of the melting and freezing conditions that also affected the sidewalk margin area“.
The Plaintiff’s orthopaedic surgeon gave the following evidence with respect to the severity of the injury:
Mr. Legault slipped and fell through a plate glass window at a shopping mall. He sustained a number of small lacerations to his upper extremities and his lip which were sutured in the emergency department. The main impact occurred on his left shoulder and he was diagnosed with a proximal humerus fracture…Radiographs and CT scan performed December 6, 2005, revealed a comminuted intraarticular fracture of the proximal humerus with slight superior and posterior displacement of the greater tuberosity….
Mr. Legault has developed post traumatic arthritis of his left shoulder most probably secondary to a fracture sustained December 6, 2005. Although the symptoms of pain and stiffness due to arthritis may plateau, it is possible that he may experience progressive symptoms in the shoulder as time passes. As arthritis is an irreversible condition, Mr. Legault has a permanent impairment. He is likely to experience increased symptoms with repetitive activity, overhead activity, and activities which load the shoulder joint including use of vibratory tools or machinery, or heavy lifting. Surgical options for shoulder arthritis include arthrpacopy and debridement or hemi or total arthroplasty. The results of these procedures for post traumatic arthritis (as compared to degenerative osteoarthritis or rheumatoid arthritis, for example) are less favorable. In this particular patient, his complication rate would be significantly increased due to his size and longstanding diabetes.
The Plaintiff’s total damages were assessed at $354,311 but this award was cut in half to account for the plaintiff’s contributory negligence.  In assessing non-pecuniary damages of $110,000 for the Plaintiff’s shoulder injury the Court found as follows:

I am satisfied that he has suffered an injury that has resulted in a permanent partial disability and will permanently affect his enjoyment of life on a daily basis, causing him difficulty with self care hygiene, dressing, moving up and down stairs, marital intimacy, home maintenance tasks, and driving. The physical injury has also made it more difficult to manage his obesity and other health issues related to fitness. His wife testified that she feels as if she has lost her husband entirely.  He was formerly able to lift and carry heavy automobile components and use heavy power tools in the course of working on vintage cars, which was his main interest in life; but he is unable to do that and has lost much of his zest for life.

[51] The plaintiff has referred me to cases where non-pecuniary awards in the range of $125,000 to $150,000 were made and the defendant relies on cases in the range of $70,000 to $75,000. I assess Mr. Legault’s loss under this head of damages at $110,000, which is subject, of course to the 50/50 apportionment of liability, as will be the case with the awards under the remaining heads of damage.