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$54,000 Non-Pecuniary Damages for Onset of Pain in Pre-Existing Wrist Arthritis

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


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff $54,000 in damages for a wrist injury.
In today’s case (Zigawe v. Rance) the Plaintiff was involved in a 2006 rear end car crash.  The issue of fault was admitted by ICBC leaving the court to decide the value of the Plaintiff’s injuries.
The Plaintiff suffered various soft tissue injuries which largely resolved by trial.  The main focus of the trial was the Plaintiff’s wrist injury.  The evidence established that the Plaintiff had pre-existing arthritis in her wrist but this was asymptomatic.  The crash caused this pre-existing condition to become painful.  The court valued the Plaintiff’s non-pecuniary damages at $60,000 then reduced this award by 10% for the contingency that the pain may have come on even without the car crash.
In coming to the above valuation Madam Justice MacKenzie reasoned as follows:

[107]     I find the plaintiff experienced neck pain for over three years, but it is almost resolved.  The headaches appeared to be associated with the neck pain and have resolved.

[108]     I also accept the plaintiff’s evidence that the plaintiff’s shoulder pain had mainly resolved six months post-accident but she had some pain in her left shoulder in May 2009, which is now resolved…

[110]     On the whole of the evidence, and in particular that of Dr. Shuckett who agreed the plaintiff’s current overall condition was “not inconsistent with” rheumatoid arthritis, I find it likely that the accident exacerbated pre-existing, but asymptomatic tenosynovitis related to rheumatoid arthritis in the plaintiff’s left wrist.  While it is an atypical presentation in that the condition is not mirrored in the right wrist, this finding makes the most sense.  It is proven on the balance of probabilities.

[111]     I do not accept the defendant’s submission that the rheumatoid arthritis in the left wrist arose independently of the accident.  In my view such a conclusion is not consistent with its temporal connection to the accident, and Dr. Shuckett’s evidence that the inflammation that accompanies this sub-acute condition can take weeks or months to develop…

[114]     Thus, on the totality of the evidence, the accident at least exacerbated the pre-existing tenosynovitis related to rheumatoid arthritis in the left wrist, given its history.

[115]     The swelling and significant, long standing pain has not improved since the accident.

[116]     Thus, I find the accident activated the plaintiff’s pre-existing condition in a wrist that was asymptomatic for some years before the accident.  The left wrist may indeed have remained asymptomatic of tenosynovitis related to rheumatoid arthritis for many years had the accident not intervened.  It may have not manifested into rheumatoid arthritis, given Dr. Shuckett’s evidence as to the nature of that condition.

[117]     The neck injury was caused by the accident and its recovery was probably prolonged as a result of her pre-existing but asymptomatic osteoarthritis.

[118]     The asymptomatic left wrist condition was triggered by the accident, resulting in significant pain and swelling that still has not resolved more than three years post-accident.  Hopefully, the scheduled injection of what is likely cortisone will greatly improve the wrist, but that is unknown, and the plaintiff may require surgery on that wrist.  But for the accident, the pre-existing asymptomatic condition in the left wrist may never have manifested…

[122]     In this case, I agree with the plaintiff that only a modest deduction is appropriate to account for the plaintiff’s pre-existing left wrist tenosynovitis related to rheumatoid arthritis.  It was asymptomatic before the accident.  It might never have resulted in symptoms but for the accident.  However, there remains a measurable risk that it would have detrimentally affected the plaintiff in the future given the plaintiff’s left wrist problem in 2001 as seen by Dr. Hollands.  He thought it might represent early onset of rheumatoid arthritis although I realize the signs and symptoms presented differently in the post-accident wrist tenosynovitis.

[123]     Therefore, in my view, a discount of 10 percent from non-pecuniary damages appropriately reflects the contingency of the condition developing in the future…

[126] In my view, having considered all the evidence and all the cases, non-pecuniary damages of $60,000 discounted by 10 percent, or $6,000, which amounts to $54,000 is appropriate in all the circumstances.

This case is also worth reviewing for the Court’s discussion of credibility.

The Court found that the Plaintiff was a “vague historian” and had a “poor memory“.  The Court also found that the Plaintiff “exaggerated the degree to which she could not use her left wrist.“.  The Plaintiff told her doctor that the wrist was “useless” and this was contradicted by video surveillance evidence obtained by ICBC.   This evidence seemed to negatively impact some of the plaintiff’s claims and the judgement is worth reviewing in full to see how the Plaintiff’s credibility was scrutinized at trial.

BC Supreme Court Discusses Law of Left Hand Turn Intersection Crashes

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Whiplash Cases, Uncategorized.


Perhaps no type of accident has received more judicial attention than intersection collisions between left hand turning motorists and through drivers.  Reasons for judgement were released today by the BC Supreme Court discussing the law of fault when such a collision occurs on a green light.
In today’s case (Basi v. Buttar) the Plaintiff was involved in a January, 2007 car crash in Surrey, BC.  She was travelling through an intersection when the Defendant turned in front of her as she was just about to enter the intersection.  The Defendant said that the Plaintiff was at fault because she was speeding. Mr. Justice Brown found the Defendant 100% at fault for the collision and in doing so provided the following succinct summary and application of the law:

[24] Accidents such as this are a common occurrence. Section 174 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318 [the Act] imposes duties both on the driver proceeding through the intersection (the “through driver”) and on the driver intending to turn left. The driver turning left must yield to the through driver where the through driver is in the intersection or constitutes an immediate hazard to the driver turning left. If the through driver does not constitute an immediate hazard, that is, if it is safe to turn left, then the through driver must yield the right of way to the driver turning left provided that the driver turning left has signalled his intention to turn left per s. 172 of the Act.

[25] The main question in this case is whether the plaintiff’s vehicle constituted an immediate hazard to Mr. Sarai when he started his turn, or whether the plaintiff’s car was far enough away from the intersection so that Mr. Sarai could safely turn left. If the former, the defendant should have yielded; if the latter, the plaintiff should have yielded. However, even if one of the parties has the right of way, that does not discharge them from a duty to exercise reasonable care in the circumstances.

[26] Mr. Sarai managed to clear the intersection in sufficient time to avoid a collision; however I accept the evidence of the plaintiff and Mr. Lavergne that the plaintiff’s car and Mr. Sarai’s van nearly collided. And while, as stated, I have some reservations about Mr. Laverne’s impartiality, I have no reason to conclude that he fabricated his evidence about how close the plaintiff was to the intersection when Mr. Sarai made his turn. I find that the plaintiff was too close to the intersection for Mr. Sarai to safely complete his turn and that he should have yielded to the plaintiff in accordance with s. 174 of the Act.

[27] While counsel for the defendant urged me to find that the plaintiff was driving too fast for the slippery road conditions, the fact remains that Mr. Sarai himself confirmed that the plaintiff was driving her vehicle in a controlled and safe fashion as she approached the intersection. Of course, he also testified, in effect, that she did not constitute an immediate hazard to him as she approached, so this evidence about the plaintiff’s safe driving is also somewhat consistent with his position that he could turn safely.

[28] The strongest argument in favour of the defendant comes from the fact that the plaintiff could not control her car and Mr. Lavergne’s evidence that Mr. Sarai made his turn slowly—had he moved more quickly, the plaintiff could have travelled straight through the intersection. This could suggest that the plaintiff may have been driving too fast or over-reacted.

[29] However, I am more persuaded by the evidence that Mr. Sarai started his turn when the plaintiff was too close to the intersection. She attempted to brake and turn to the left to avoid a collision with Mr. Sarai’s van. She lost control because of the slippery road conditions. I cannot conclude on the balance of probabilities that she drove too fast for the conditions. The only evidence of that comes from Mr. Buttar, who I find had limited opportunity to observe. I prefer the evidence of the plaintiff, Mr. Lavergne and Mr. Sarai in this regard. Therefore, I find the defendant Mr. Sarai 100% responsible for the accident for failing to yield to the plaintiff’s approaching vehicle, which constituted an immediate hazard as he commenced his left turn.

The Court went on to award the Plaintiff just over $42,000 in total damages for her injuries.  In assessing her non-pecuniary damages at $30,000 Mr. Justice Brown summarized her injuries and their effect on her life as follows:

[67] This is a moderate soft tissue injury with symptoms prolonged beyond the usual period expected possibly on account of the plaintiff’s clinical history of complaints in the same areas as noted before the accident. However, she was asymptomatic pre-accident, except for occasional headaches. She has steadily improved since the accident. She returned to her to job at the bank by March 19, 2007, a little over two months after the accident, and to the CRS not long after that. She has returned to full time work, with her work hours totalling over 60 hours per week. Recreational activities such as skiing and running have been negatively impacted, and her homemaking capacity has been diminished. She has made a near full recovery from her injuries, and the accepted medical evidence indicates the plaintiff will see a full recovery in the future, though she may suffer minor flare-ups…

[70] The cases cited by counsel encompass the appropriate range of damages for a case of this kind, but of course, each case involves its own factors, and therefore requires an individual assessment.

[71] Based on all the evidence before me, I award $30,000 to the plaintiff for non-pecuniary damages

Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 42 Comments on Disclosure of Medical Records and Privacy Concerns in ICBC Injury Claims


Reasons for judgement were published this week on the BC Supreme Court Website dealing with disclosure of past medical records in the context of an ICBC Injury Claim.
In this week’s case (Sidhu v. Dhani) the Plaintiff was involved in a 2006 BC Car Crash and sued for damages.  In the course of the lawsuit ICBC asked that the Plaintiff provide all her medical records for 4 years before the car crash.  There was evidence that the Plaintiff attended one specific GP 236 times in the years before the collision.  The Plaintiff refused to produce these records and ICBC applied to court.  At the hearing the Master largely agreed with ICBC and ordered that the medical practitioners who treated the Plaintiff produce all of their records for the 3 years before the car crash directly to ICBC’s lawyer.
The Plaintiff appealed arguing that the disclosure should not have been ordered or, in the alternative, that the records should go to the Plaintiff’s lawyer first so that clearly irrelevant records could be redacted before sharing the records with ICBC.
On Appeal Mr. Justice Schultes agreed that the the records should be produced but ordered that they be produced with the safeguards the Plaintiff wished.
In coming to this decision Mr. Justice Schultes reasoned as follows:
[8] The learned master ordered the production of the records in what has become known as Jones form, that is, directly to counsel for the third party rather than in so-called Halliday form, in which the plaintiff’s counsel would first have the opportunity to review the records and seek to vet out any matters said to be irrelevant or subject to a privilege.  The learned master did not provide the reasoning underlying this aspect of his decision…

the master drew the inference that the sheer number of medical visits, including the remarkable number to one doctor, made it likely that the clinical records contained information that would be relevant to the plaintiff’s claims.  The learned master’s reasons, though brief, clearly demonstrate that process of analysis.  In particular, the large number of medical visits would be relevant to the plaintiff’s claim that the accident had diminished his employment prospects and ability to earn future income by suggesting some other chronic or ongoing difficulties potentially unrelated to the accident.

[13] To make this distinction clear, it appears to me that speculation and so-called fishing expeditions refer to a situation in which the material in support of an application does not give rise to a reasonable inference that material relating to the matter is likely in the hands of the third party.  Material relating to the matter is, of course, that which directly or indirectly allows a party to advance his own case or damage that of his adversary’s: Compagnie Financiere et Commerciale du Pacifique v. Peruvian Guano Co. (1882), 11 Q.B.D. 55 (C.A.) which is the standard reference on this point.

[14] It follows that I find that the learned master was not clearly wrong in his decision on this aspect of the case and I would therefore dismiss the first part of the appeal…

[15] The plaintiff further argues that even if the learned master was not clearly wrong in ordering disclosure of these records, he erred to that standard in failing to order their disclosure on the so-called Halliday basis, that is, released first to him so that issues of relevancy and privilege could be considered.  The source of this basis is the decision ofHalliday v. McCulloch (1986), 1 B.C.L.R. (2d) 194 (C.A.).

[16] The value of the Halliday process is to allow potentially privileged material to be preserved until a proper determination of its status has been made and to allow the plaintiff to delete irrelevant or embarrassing or confidential material, or to make it irrelevant by amending his pleadings before discovery: see Halliday, at pages 199 and 200.  The effectiveness of this process, of course, depends on counsel carrying out their duty to disclose relevant material: see Boxer v. Reesor (1983), 43 B.C.L.R. 352 (S.C.).  However, as Lambert J.A. pointed out in Halliday any abuse of this method of disputing relevance can be subsequently punished by an order of costs.

[17] On this issue, the plaintiff relies on Grewal v. Hospedales, (2004), 33 B.C.L.R. (4th) 294 (C.A.), and Gibson v. Mian, 2002 BCSC 1836.

[18] In Grewal, the master was found to have erred in failing to consider in a personal injury accident the relevance of the plaintiff’s medical records from specialist whose areas of specialty appeared to bear no relationship to the types of claims that the plaintiff was advancing.

[19] In Gibson, the master ordered medical records of the plaintiff’s family doctor in Halliday form based on the reasoning that such a doctor is likely to deal with irrelevant issues that could embarrass the plaintiff.  This analysis was as applicable, in the master’s view, to male plaintiffs as to female plaintiffs.  As the master observed:

… in the case of general practitioners, other things being equal, I think that … describing them as the general practitioner with a history of consultations for matters other than the injuries sustained in the accident is enough to meet the necessary standard of lack of relevance and embarrassment.

[20] The Gibson decision, being a decision of a master, is not, strictly speaking, binding on me, but I do find its analysis helpful.  While I would not go so far as to say that in all cases the bare assertion that a doctor is a general practitioner who did not treat the injuries complained of as part of the action will justify disclosure on a Halliday format, I do think that it would raise concerns that a court must at least consider and address.  In this regard, I disagree with the third party’s submission that the Halliday procedure is restricted to circumstances, like those in Grewal, in which the nature of the practitioner’s speciality is on its face irrelevant to the issues in the litigation.

[21] Here, the learned master did not provide any analysis explaining his decision to order disclosure in Jones format.  While he is deemed to know the law and to have applied it correctly in the absence of some contrary indication, I think it was a clear error for him not to have identified that the same large number of medical visits which had made it likely that these records contained relevant evidence also sharply increased the risk of capturing irrelevant and embarrassing information during the process.  This seems to me to be the obvious corollary of his disclosure decision and I cannot infer that he addressed it and resolved it in a manner that justified Jones disclosure in the absence of any indication to that effect.

[22] Accordingly, I will allow the appeal to the extent of ordering that records of the doctors whom the plaintiff asserted did not treat him for any matters related to the accident that is the subject matter of this litigation will be disclosed in accordance with the procedure in Halliday.

I should point out that as of July, 2010 the new BC Supreme Court Civil Rules come into force and the tests for what types of documents need to be exchanged will be narrower so it will be interesting to see how this area of law changes under the soon to be in place new system.

$75,000 Non Pecuniary Damages Awarded for Chronic Soft Tissue Neck Injury

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.


Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff just over $156,000 in total damages as a result of damages and loss from a BC Car Crash.
In yesterday’s case (Szymanski v. Morin) the Plaintiff was involved in a rear end collision in 2004.  Liability (Fault) was admitted by the Defendants leaving the court to deal with the value of the Claim.
The Plaintiff suffered mild/moderate soft tissue injuries but due to the nature of his physical work (a hard-wood floor installer) his injury continued to be aggravated and symptomatic through trial some 5 years later.
In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Madam Justice Ker highlighted the following facts with respect to the accident related injuries:
[134] Upon a consideration of all of the evidence, I find that Mr. Szymanski’s complaint of continuing neck and trapezius pain was caused by the accident.  The fact that he suffered soft tissue injuries to his neck is not disputed.  The significance in this case is that the complaint continues.  I find that Mr. Szymanski continues to suffer neck and trapezius pain and that is because the accident and injuries occurred to a person with Mr. Szymanski’s particular occupation such that it has made it difficult for the injuries to fully resolve in the ordinary course.  As noted in the evidence of Dr. Tomaszewski, Dr. Hershler and Ms. Quastel, which I accept, Mr. Szymanski’s occupation as a hardwood floor installed has exacerbated the situation and made him more susceptible to suffering injury for a greater period of time than a normal person might have.  Mr. Szymanski has established that he has continuing problems with chronic neck pain and his continuing problems were caused by the defendants’ negligence.  He is entitled to be compensated for his injuries…

[142] I accept Mr. Szymanski’s evidence that he sustained a soft tissue injury to the left side of his neck as a result of the accident and that he still experiences pain in the left side of his neck that radiates into his upper left trapezius muscle area.  The injury can be described as mild to moderate in nature but has developed an element of chronic pain that continues to bother Mr. Szymanski.  The pain is most evident when Mr. Szymanski works.  His job as a hardwood floor installer is physically demanding although he has been able to find contracts that are less demanding than what he undertook prior to the accident.  This chronic neck pain still manifests itself some four years after the accident, albeit significantly reduced from what it was immediately after the accident and the two years following the accident.

[143] Mr. Szymanski is a stoic and determined person.  Despite the neck and upper left trapezius pain he has tried to remain physically active but is less active than he was prior to the accident.  He no longer goes for long hikes, electing shorter slower walks, he no longer canoes, he hunts less than he did prior to the accident, primarily by reducing the number of hours he goes out hunting.  His injuries have impacted on his ability to contribute to various household chores such as vacuuming and washing dishes, and he is not able to conduct the home renovations at the pace he had set before the accident.  He no longer socializes to the extent he used to prior to the accident because of the chronic pain and fatigue he experiences.  His plan of retiring and building and opening a bed and breakfast may well be compromised by the continuing pain he experiences and thus is a further component in the assessment of impairment and loss of his previous lifestyle.

[144] Taking into account all of these circumstances, the referenced authorities and the nature of Mr. Szymanski’s injuries, the fact that the injury of real consequence was to the left side of his neck, and the upper left trapezius muscles that lead to his left shoulder, the relatively enduring nature of this injury, the pain he has suffered and may continue to experience in the future, as well as the fact that he suffered some diminishment in lifestyle, I assess non-pecuniary damages in the amount of $75,000.

Massage Therapy and ICBC Part 7 Medical Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 60 Comments on Massage Therapy and ICBC Part 7 Medical Benefits

(UPDATE: November 29, 2011 – the below case was upheld today by the BC Court of Appeal.  Reasons can be found here)

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, dealing with the scope of ICBC’s obligations under Part 7 of the Insurance (Vehicle) Regulation.  These benefits are commonly referred to as Part 7 Benefits (Click here for some background on these).
In today’s case (Raguin v. ICBC) the Plaintiff was insured with ICBC and incurred several hundred dollars in massage therapy expenses.  ICBC refused to pay for these and the Plaintiff sued.
At trial ICBC’s lawyer argued that “Massage therapy is not a ‘treatment’ contemplated under section 88 of the regulations“.
Mr. Justice McKinnon disagreed with ICBC’s position and called it ‘without merit‘.  The court went on to hold that “Section 88 is not a section that restricts Section 7 benefits to a prescribed list of treatments.  Rather it is a general section that simply sets out an obligation to provide treatments that are recommended by a physician.  The treatments that are set out in section 88 are merely a general list subject to expansion, as indeed various cases that have been cited have expanded…The doctor ‘recommended’ massage therapy, which in my view is sufficient to trigger an obligation to pay.”
Unless this case is overturned on appeal it is beneficial for BC Injury Victims to have clarity that Part 7 of the Regulations covers massage therapy expenses even though these are not specifically mentioned in the regulation.

2009 Canadian Law Blog Awards

Written by admin on . Posted in Uncategorized. 47 Comments on 2009 Canadian Law Blog Awards


I am very proud to have been nominated for a Canadian Law Blog Award for 2009 and humbled to have won the award for “Best Practitioner Blog”.
I want to thank Steve Matthews of Stem Legal for the Award and his kind words about me and this Blog.  I am delighted to be in the great company of the other nominees/winners and wish to thank everyone who nominated me and wish everyone a great 2010.
Here is a Full List of Award Winners this year:
1.  Best Canadian Law Blog: Slaw
2.  Best Practitioner Blog:  Tie between the BC Injury and ICBC Law Blog and All About Information
3.  Legal Culture Award: Law is Cool
4. Non-Legal Audience Award:  Rob Hyndman
5.  Friend of the North Award: Dennis Kennedy
6.  Euro / Can Connection Award: Charon QC
7.  Practice Management Award:  Tie between Thoughtful Legal Management and Avoid a Claim Blog
8.  Law Librarian Blog Award: Shauna Mireau on Canadian Legal Research
9.  Best Legal Technology Blog:  Micheal Geist
10:  Best New Law Blog Award:  Tie between The Trial Warrior and Blogasurus Lex
11.  Law Professor Blog Award:  Tie between Doory’s Workplace Law Blog and U of A Faculty of Law Blog
Congratulations to all!

ICBC Injury Claims, Disclosure Requirements and Credibility

Written by admin on . Posted in Civil Procedure, Uncategorized. 48 Comments on ICBC Injury Claims, Disclosure Requirements and Credibility


Litigants in the BC Supreme Court have to make pre-trial disclosure in a variety of ways.  Some of this compelled disclosure may reflect poorly on a party’s credibility but if the documents or evidence is otherwise producible it must be disclosed to the other side despite the potentially harmful effects on your case.  What about documents or facts that don’t relate to the lawsuit directly but do address a parties credibility?  Can these documents be forced to be disclosed?
The answer is usually no.  Credibility, as important as it is, is considered a ‘collateral issue‘ in litigation and matters relating solely to credibility are deemed irrelevant in terms of pre-trial disclosure.  Reasons for judgement were released today by the BC Supreme Court discussing this.
In today’s case (Bay v. Pasieka) the Plaintiff was involved in a 2005 intersection car crash in Kelowna, BC.  The Plaintiff sued the alleged at fault motorist.   In the pre-trial discovery process the Defendant stated he had no recollection of the accident.  In exploring why the Defendant had no recollection the Plaintiff’s lawyer asked him whether he might have been taking any medication at the time of the crash which may have affected his memory to which he replied “I don’t know if I took medication that would affect my memory“.
The Plaintiff’s lawyer brought a motion for the production of the Defendant’s MSP history along with clinical records of treating physicians who cared for the Defendant in the relevant time frame to test “the creditility of the defendant” and to provide “some explanation for why he has no recollection of the accident“.
Master Young ultimately dismissed the motion holding that the evidence on the application was not sufficient for production of the sought records.  Before reaching this conclusion Master Young made some useful comments with respect to sought disclosure in ICBC Injury Claims relating solely to issues of credibility.  Specifically she held as follows:
Credibility is a collateral issue, as stated in the decision of Sandhu (Guardian ad litem of) v. Philipow (1996), 24 B.C.L.R. (3d) 78 (S.C.), and that decision says that it is not a matter which can be examinable in discovery. The defendant quotes from the decision in Roberts v. Singh, 2006 BCSC 906, which confirms that principle and quotes several other decisions which I have reviewed..These records are only being demanded to challenge his credibility, which is not a relevant issue.
There is caselaw that suggests that matters relating solely to credibility may be produced when punitive damages are being claimed (see for example Rioux v. Smith; 1983, 43 BCLR 392) but otherwise it is important to note that credibility is a ‘collateral issue‘ and not relevant for the purposes of pre-trial disclosure.

More on ICBC Injury Claims and the "Worker v. Worker" Defence

Written by admin on . Posted in Civil Procedure, Uncategorized. 61 Comments on More on ICBC Injury Claims and the "Worker v. Worker" Defence


When a person is injured through the fault of another in British Columbia the injured party generally has the right to make a claim for compensation against the at fault party through our Civil Litigation system (ie. a tort claim through the Courts).
There are some exceptions to this and one such exception is found in section 10 of the Workers Compensation Act.   Generally speaking, Section 10 prohibits a worker who is injured in the course of employment from suing a responsible party who was also in the course of employment at the time of the injury.  (I should point out that there are some exceptions to this general rule).  This statutory bar can be a complete defence to a tort claim arising from a motor vehicle accident and reasons for judgement were released today by the BC Supreme Court demonstrating this.
In today’s case (Dhanoa v. Trenholme) the Plaintiff was injured in a 2006 BC Car Crash.    She was “walking through a parking lot owned by her employer when she was struck by the Defendant who was driving a motor vehicle at that time and who also works for the same employer“.
The Plaintiff sued the Defendant for her injuries and damages.  The Defence lawyer, in responding to the claim, raised s. 10 of the Workers Compensation Act.  When this defence is raised in a BC Lawsuit the issue of whether both parties were workers must be decided by the Workers Compensaiton Appeal Tribunal (WCAT).  WCAT decided that both Plaintiff and Defendant were in the course of their employment when the crash happened.  With this decision in hand the Defendant’s lawyer applied to dismiss the lawsuit and succeeded.  In dismissing the claim Mr. Justice Cole awarded the Defendant full costs of defending the lawsuit.
In doing so Mr. Justice Cole made the following useful points with respect to the practical procedural consequences that are created when a s. 10 defence is raised in an ICBC Injury Claim”
[11] The case law is clear that merely pleading a s. 10 defence does not itself bar the litigation. The WCAT has the exclusive jurisdiction to determine the “worker vs. worker” issue and the action remains ongoing unless and until the WCAT renders a decision that would bar the action. I am of the view that if the plaintiff does not want the defendant to run up costs in the meantime, the plaintiff is at liberty to make an application for a stay of the proceedings until the Workers’ Compensation Board issue is decided…

[18] Based on the foregoing review of the relevant authorities, it is clear that the WCAT proceeding is a step within the action which is mandated by legislation. A stay of proceedings pending this step, however, is not automatic when the s. 10 defence is pled: Hommel, at paras. 38 and 46. Therefore, to presume there is a stay and say counsel should not be taking steps for the upcoming action is wrong in law. Unfortunately, the decision in Khare does not appear to consider the authorities that were provided to the Master in the present case and because the decision in Khare was delivered orally without the opportunity to fully consult authority, I am not bound by it: Re Hansard Spruce Mills Ltd., [1954] 4 D.L.R. 590, 13 W.W.R. (N.S.) 285 (B.C.S.C.).

[19] I am of the view that because each case is unique, it would be wrong to set a blanket rule that a party claiming costs cannot recover on any proceedings initiated by them after a s. 10 Workers’ Compensation Board defence is raised, as it would be too draconian. There may be legitimate reasons to take steps in a proceeding and if those steps are unfair, either party can apply for a stay.

This case goes to show that, where the s. 10 WCB defence is raised in an ICBC Injury Claim it may be in the parties best interests to have the issue resolved early in the process to minimize costs consequences for unsuccessful party.

$55,000 Non Pecuniary Damages for Chronic Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for Judgement were released today by the BC Supreme Court, Vernon Registry, (Donnelly v. Durham) awarding a Plaintiff just over $67,000 in total damages as a result of a BC Car Crash.
The Plaintiff’s collision occurred in 2005 and was a significant rear end impact that resulted in $10,000 of damage to her vehicle.  The issue of fault was admitted by ICBC’s lawyer leaving the court to deal with the issue of quantum of damages.
The Court found that the 52 year old plaintiff was “healthy and active with no history of musculoskeletal injuries” before the crash.  Mr. Justice Cole found that the Plaintiff suffered various injuries as a result of the crash which continued to limit her by the time of trial.    The Court accepted the evidence of Dr. Apel, a specialist in physical medicine.  Mr. Justice Cole summarized her evidence as follows:

[23] Dr. Apel, a specialist in physical medicine and rehabilitation, in a report dated February 8, 2008, diagnosed the plaintiff with mechanical lower back pain, pain in the buttocks, mechanical pain of the thoracic back, pain in the back of the thigh and in the area of the inside of the knee.

[24] In regards to the plaintiff not recalling hitting her knee in the accident, Dr. Apel explained that the knee is connected to the hip and buttock by way of the IT band and the tension in the plaintiff’s hip and lower back could cause malalignment of the thigh which can then cause pain to the inside of the right knee.

[25] Dr. Apel was of the view that the plaintiff’s injuries and symptoms are due to the collision and considering the negative prognostic factors, her age, chronicity of symptoms, and lack of improvement to date, that the prognosis for complete symptom resolution is guarded.

In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Cole stated as follows:

[33] I am satisfied that the plaintiff was a credible witness, that she had no pre-existing injuries that were ongoing at the time of the motor vehicle accident. I also accept her evidence with respect to her current symptoms, and more particularly with respect to her right knee and I am satisfied that her right knee was injured in the motor vehicle accident and therefore, but for the defendant’s negligence, her injuries would not have occurred.

[34] As a result of the motor vehicle accident, the plaintiff sustained soft tissue injuries to her neck, back, right hip and right knee with radiating pain into her foot. She has also suffered from persistent painful headaches. Her symptoms, besides the radiating pain, have plateaued and her prognosis for any further recovery is guarded.

[35] I am satisfied that the plaintiff is a stoic individual who has done her best to work through her pain and that due to the length of time that she has had difficulties with her back and headaches, a long term prognosis is guarded…

[38] I find that the appropriate award for non-pecuniary damages is $55,000. This includes compensation for the plaintiff’s loss of future housekeeping capacity, which I found to be significant. Entertaining, cooking and keeping a clean house were some of the plaintiff’s priorities and activities that she derived a great deal of pleasure from.

Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 36 Comments on Navigating the Minefield – BCCA on Improper Opening and Closing Statements in Jury Trials


One role lawyers have in Injury Litigation is to persuasively advance their clients case and this extends to opening statements and closing arguments at trial.  Sometimes, however, lawyers become caught up in the moment and cross the line in their remarks to a jury and this can lead to a mistrial.  Reasons for judgement were released today by the BC Court of Appeal reviewing this area of the law.
In today’s case (Knauf v. Chao) the Plaintiff was involved in two Motor Vehicle Collisions in 2002.  The Plaintiff was injured in both crashes.  The Plaintiff’s claim proceeded to trial and the Jury awarded just over $500,000 in total compensation for her injuries including an award of $235,000 for non-pecuniary damages.
The Defendants appealed the judgement arguing in part that the trial was unfair because the Plaintiff’s lawyer made improper statements in his opening and closing submissions to the Jury.  The BC Court of Appeal agreed with this submission and found that the Jury’s award for non-pecuniary damages was excessive.  The Court reduced the jury’s award by $100,000.  In doing so the court made some useful comments with respect to the Plaintiff’s lawyers submissions which are worth reviewing.
During the trial the Plaintiff called an expert witness who conducted a functional capacity assessment of the Plaintiff’s abilities.  In doing so the expert used some validity tests which are used to measure the consistency of effort applied by the Plaintiff.  When the expert gave evidence the results of the validity testing was discussed.  In short the validity testing showed consistent effort throughout the assessment.  In closing arguments, the Plaintiff’s lawyer commented on this evidence and stated as follows ” She was consistent throughout.  What she said and what the test result showed were the same.  She wasn’t exaggerating; she wasn’t saying she was in pain when the test results showed differently.  She was consistent. And that’s what those tests were designed to do to show if what she told Mr. Pakulak, if what she told her doctor, what she told you was real and legitimate.”
The Court of Appeal took no issue with the validity testing but held that the Lawyers comments were improper.  Mr. Justice Tysoe held as follows: “In my opinion, there is nothing objectionable about validity testing per se.  It goes to the reliability of the opinion expressed by the expert and the weight to be given to it by the trier of fact.  That is a proper purpose…However, the remark made by the plaintiff’s counsel in his closing address to the jury was clearly improper (this was conceded on appeal by counsel for the plaintiff, who was not counsel at trial).  The plaintiff’s counsel effectively told the jury that they could use Mr. Pakulak’s evidence for the improper purpose of oath-helping.  This was not corrected by an instruction in the charge to the jury.”
The Court then went on to highlight some further statements made by the Plaintiff’s lawyer and reproduced the following exerpts at paragraphs 39-40:

[39] The opening statement made by the plaintiff’s counsel to the jury included the following (with the comments the defendants say are objectionable emphasized by me):

The statements of defence that were filed on behalf of the defendants say they are not responsible, and this confused and upset Ms. Knauf. … Responsibility was still denied, that is until last Friday, six years after these accidents, when the defendants’ lawyer told us that they now admit responsibility; …

Ms. Knauf comes to court to ask you to fix the harm that was done to her on those two days in 2002.

Ms. Knauf lost her ability to make good money as a waitress and save to buy a home back when prices were still reasonable.  These accidents were six years ago and Ms. Knauf had already saved — and by coincidence the figure is $6,000.  She’d already saved that from the time a year before the accident when she started working as a waitress….

Ms. Knauf has not collected any disability benefits or sick benefits or social assistance because of her injuries.  She’s a worker. She’s struggling in an expensive city and wants to work not less but more.

[40] His closing address included the following (with the similar added emphasis):

It took six years for the defendants to acknowledge their responsibility for these accidents. We are now here, not for sympathy, but to collect the debt that is owed to Ms. Knauf and the rules require that that debt be paid.

Ms. Knauf does not stay at home and whine.  She has not collected disability benefits; she has not collected welfare; she’s not collected employment insurance or any benefits because of her injuries.

Now, Ms. Knauf has had to deal with other problems, big, difficult problems:  the death of her mother; an unrelated knee problem; her marriage. Don’t be sidetracked by those issues.

I said that we’re here to collect a debt, a debt that is owed to Ms. Knauf by the defendants.  That debt is compensation for the harm and the losses that they caused her. …You’re not to consider any outside reasons.  The rules don’t allow that.  You’re only to consider the losses and the harms that were suffered by Ms. Knauf, nothing else. If any of you consider any outside reasons, you’re breaking the rules and everyone here has to follow the rules.

You’re going to be asked about special damages.  That’s the money that Ms. Knauf spent on treatment.  That’s Exhibit 1.  It’s just under $6,000 and those amounts were not challenged.  And it’s a coincidence, perhaps a sad coincidence, that the money Ms. Knauf has spent on her own treatment these last six years is about equal to what she had saved up hoping to buy her own home at the time of these accidents.

The Court of Appeal concluded that these comments were improper and provided the following guiding comments:

Some of the comments made by the plaintiff’s counsel were irrelevant and appeared to be designed to arouse hostility against the defendants.  Others appeared to be designed to appeal to the emotions of the jury or otherwise engender sympathy for the plaintiff.  Counsel improperly stated that his client was owed a debt by the defendants.  He improperly suggested to the jury members that they would be “sidetracked” or “breaking the rules” if they considered the death of the plaintiff’s mother, the injury of her knee or her unsuccessful marriage, all of which were relevant to the state of her health or enjoyment of amenities.

[43] The plaintiff concedes that some of the comments made by her counsel at trial were unfortunate or improper, but says there were no exceptional circumstances warranting interference by this Court in view of the lack of objection by the defendants’ counsel.  I do not agree.  The effect of the improper comments is manifested in the jury’s award for non-pecuniary damages, which, as I will discuss under the next heading, was wholly disproportionate and constitutes a substantial wrong.

The Court went on to reduce the Jury’s award of non-pecuniary damages by $100,000 but pointed out that if the Defence lawyers objected during trial a mistrial may have been an appropriate remedy.

As trial lawyers know it is a fine line distinguishing between what comments are persuasive and which cross the line to improper.  Cases such as this will continue to add clarity and help trial lawyers navigate the minefield of Jury Trials.