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Loss of Housekeeping Capacity in BC Personal Injury Claims

Written by admin on . Posted in Uncategorized.


When an injured person is less able to perform their usual tasks in and around the home they will often be awarded a higher amount for their Non-Pecuniary Damages and this loss can also be accounted for in awards for Special Damages, Cost of Future Care and Loss of Future Earning Capacity. However, British Columbia Courts have sometimes recognized the loss of past housekeeping capacity as a separate head of damage and award extra money for this specific loss.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Campbell v.  Banman) the Plaintiff was awarded damages as a result of injuries and loss from 2 BC Car Crashes.  The award for damages included just over $22,000 for ‘loss of housekeeping capacity“.  The defendants appealed this award arguing it was not reasonable.  The BCCA disagreed and dismissed the appeal.  In doing so Madam Justice Saunders provided the following useful discussion of the law of diminished housekeeping capacity in BC Personal Injury Claims:

[11] The award for loss of housekeeping capacity is made in the shade provided by Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.). In Kroeker this Court, in a majority decision authored by Mr. Justice Gibbs sitting on a five judge division, without characterizing the nature of the award as pecuniary or non-pecuniary, affirmed the availability of an award for loss of housekeeping capacity. In reaching that conclusion Mr. Justice Gibbs said, in a passage said by the appellants to establish a mandatory judicial attitude of restraint:

[29]      There is much merit in the contention that the court ought to be cautious in approving what appears to be an addition to the heads of compensable injury lest it unleash a flood of excessive claims. But as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.

[12] The Court in Kroeker reviewed the award for loss of housekeeping capacity in the amount of $23,000, found it was inordinately high where the loss was assessed at 130 hours a year, decreasing over time (at an hourly rate of $10), and reduced the award to $7,000.

[13] This Court addressed the issue of loss of housekeeping capacity again in McTavish v. Mac Gillvray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281. In McTavish the trial judge had awarded $20,000 for past loss of housekeeping capacity and $43,170 for future loss of housekeeping capacity, sums arrived at by reference to the cost of replacement services for 10 hours each week until age 60, at an hourly cost of $10 an hour. This Court dismissed the appeal, finding there was evidence family members replaced the housework Ms. McTavish formerly had performed, and she was not required to prove she would hire someone to perform the duties in order to be fully compensated for the loss of her ability to perform the tasks herself. In the majority reasons for judgment I observed as to Kroeker:

[73]      This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there was no reason these damages could not be segregated.

[14] In my view, this case bears many of the same hallmarks as McTavish, although the extent of incapacity here is less and the damage award is accordingly attenuated.

[15] In particular, and notwithstanding the submissions of the appellants, there is evidence from Ms. Campbell and her common law husband that she had been, and still was at the time of trial, restricted in her ability to perform certain repetitive motions and those involving a certain degree of strength. Likewise Ms. Campbell and her common law husband testified he had accordingly assumed those tasks. It was open to the trial judge to accept that evidence. Further, there was no finding that the husband’s assumption of tasks formerly performed by Ms. Campbell was matched to any degree in a reallocation of duties between them…

[25] Last, the appellants are critical of the award for loss of housekeeping services on the basis it reflects an exercise in arithmetic and not an assessment.

[26] There is some force to the submission that the award should have been arrived at by assessment rather than arithmetic. An arithmetical calculation where, as here, there has not been any actual expenditure and the judge is simply estimating the value of the loss, suggests the order is untempered by judgment, and results in an award expressed in terms of precision beyond the courts faculty. To that extent, I would agree that the figures $8,132 and $10,920, awarded for past loss of housekeeping capacity are overly precise, and the award should have been expressed in more global terms. Nonetheless, it seems to me that the scale of damages is not something with which we should interfere, and thus any adjustment to the award to take account of the principle of assessment would be minor. Given this conclusion, I would not interfere with the order made.

[27] For these reasons I would dismiss the appeal.

Don't Like the Court's Order? Get it Entered Before Appealing

Written by admin on . Posted in Civil Procedure, Uncategorized. 44 Comments on Don't Like the Court's Order? Get it Entered Before Appealing

When prosecuting a personal injury claim various orders can be made in the course of litigation.  In Civil matters in the BC Supreme Court such orders have to be ‘entered’ before crystallizing.    Until the order is entered the Court maintains jurisdiction to review, clarify or potentially vary the order.  If you wish to appeal an order it is important to have it entered first.  Reasons for judgement were released today by the BC Court of Appeal discussing this important practice point in the context of an ICBC Claim.
In today’s case (Chand v. ICBC) counsel for ICBC appealed an order from a BC Supreme Court Master and later Judge.  At the time the Appeal was filed the original order was unentered.  In her reasons for judgement Madam Justice Kirkpatrick of the BCCA said the following regarding the importance of having an entered order before launching an appeal:
[29] The salient feature that I wish to note at this point is that it appears the power described in Buschau is restricted to amending an entered order.  The reason for restricting the application to entered orders is obvious.  Until the order is entered, the judge or master may, on application, reconsider the order.  Here, as I have noted, Master Baker’s order was not entered until 27 May 2009.  Accordingly, it was open to the parties to return before Master Baker at any time before that date to have him clarify the meaning of the stay order….

[41] In my opinion, on an application in which a party is seeking to determine the intention of an entered order, it is essential that the entered order be before the court.  Similarly, on an appeal from a master’s order, the appeal should not proceed until the court has before it the entered order appealed from.  To proceed in the absence of the entered order gives rise to unnecessary uncertainty.  The court hearing the application or the appeal must know that the order under consideration is not susceptible to review or variation by the master who made the order because, of course, until the order is entered, the master is not functus officio.  The proper course in light of the unentered order would have been for the chambers judge to direct ICBC to immediately appear before Master Baker for the purposes of clarifying his order.

[42]         Once the order is entered, the court is functus officio.  In R. v. Roberts, 2004 BCCA 436, this Court said that “[i]t is well settled that the court remains seized of a matter and is not functus officio until the formal judgment of the court is entered and, until that time, the court has the power to reconsider, vary or revoke its judgment” (at para. 7).

[43]         Variation is expressly authorized by the Rules of Court, under Rule 41(24):

The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon.

[44]         There are limits as to what can be corrected under Rule 41(24). McLachlin and Taylor, British Columbia Practice, 3rd ed. by Frederick Irvine (Markham, Ont.: Butterworths, 2006), summarize these limits at 41-38 to 39:

Notwithstanding that R. 41(24) is much wider than the old “slip rule”, it cannot be used to amend or alter a substantive finding even though that finding might be demonstrated to be in error … R. 41(24) does not permit changing a final order where a judge has second thoughts about his order, or to permit the parties to provide fresh details on matters already before the court ….  Its proper use is (1) to rectify a slip in drawing the order which, if unamended, would produce a result contrary to the intention of the court or of the parties… or (2) to provide for a matter which should have been but was not adjudicated upon….  [citations omitted].

[45]         It does not appear that ICBC considered making an application under Rule 41(24).

[46]         In addition to Rule 41(24), the court has, through inherent jurisdiction, “the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court” (Buschau v. Rogers Communications Inc., 2004 BCCA 142, 237 D.L.R. (4th) 260 at para. 26, leave to appeal ref’d [2004] S.C.C.A. No. 221).  In the absence of evidence of irrevocable steps in reliance or undue prejudice, the court should correct the order (para. 27).  It is not in the interests of justice for an order to stand that does not reflect the parties’ true entitlements (para. 27).

[47] In the case at bar, no one seems to have addressed their mind to the fact that Master Baker’s order was unentered.  Since then, of course, the order has been entered and I consider that this Court has jurisdiction under s. 9(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to amend the order and exercise the jurisdiction invested in the Supreme Court.  Proceeding in this way avoids further litigation and expense, far too much of which has been wasted in this case to date.

The Jursidiciton of Trial Judges to Rule on "Trial Fairness" Matters

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

In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash.  The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages.  Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence.  The Plaintiff successfully applied for a mistrial.  (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal.  In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:

[24] It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities,[1935] 1 D.L.R. 432 at para. 83, [1934] 3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.

[25] In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.

$80,000 Non-Pecuniary Damages for Knee Injury and Chronic Pain

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

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:
[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…
[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

Leave For Appeal Denied in Computer Hard-drive Disclosure Case

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 61 Comments on Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

Rule 68 Denied for Historic Personal Injury Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 47 Comments on Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).

$8,000 Non-Pecuniary Damages for "Not Substantial" Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Gradek v. DhaimlerChrystler) awarding a Plaintiff just under $10,000 in total damages as a result of a 2006 BC Car Crash.
The collision occurred in an intersection as the Plaintiff was attempting to drive through.  The Defendant made a left hand turn in front of the Plaintiff.  Both Liability (Fault) and Quantum of Damages (Value of the case) where at issue.  The Court found that the left hand turner was 100% responsible for the crash. Paragraphs 21-34 of the case are worth reviewing for a good discussion of the law concerning fault for intersection crashes.
Mr. Justice Savage found that the Plaintiff “exaggerated the impact of his injuries” and that he suffered nothing more than relatively minor soft tissue injuries.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $8,000 the Court summarized the Plaintiff’s injuries as follows:

[35] Gradek’s evidence regarding the impact of the injury on him is at times contradictory and confusing.  Gradek evidence contradicts that of his physician, Dr. Milne, who was called as a witness by Gradek, was qualified as an expert, filed an expert report and testified.

[36] Gradek description of the impact, however, accords with the somewhat unusual damage caused to the left front bumper of his vehicle.  With respect to the impact of the accident on him, I accept the evidence of Dr. Milne where Gradek’s evidence conflicts with that of Dr. Milne.  I find that Gradek has exaggerated the impact of his injuries.

[37] Dr. Milne testified that he found objective signs of injury on examination which he conducted on May 15, 2006.  The accident occurred on May 13, 2006.  Gradek was seen in Dr. Milne’s office but by another physician on May 14, 2006.  Gradek was diagnosed with soft tissue injuries, namely, a tender Trapezii muscles and tender Latissimus dorsi muscle.  He was prescribed Flexiril for ten days and Naprosyn for ten days.  Gradek was prescribed physiotherapy.  He was off work.  On May 23rd, he was much better but lower back and neck pain persisted as did the objective signs of injury.  Gradek was advised to continue to physiotherapy and to return to work on May 29, 2006.

[38] Gradek was seen again on May 30, 2006 he said he was 50 percent improved but unable to return to work.  He was advised to return to work on June 5, 2006, which he did.  Gradek was seen again on June 19, 2006 and July 3, 2006.  He had continuing minor complaints that were not severe enough to warrant prescription medication.

[39] Gradek was next seen in December 2006 where he reported minor complaints for two days, but had been fine for the last four to five months.  He was prescribed Naprosyn for five days.  Gradek was not seen again until May 5, 2007 where he had a headache and neck pain for three days.  Gradek reported that he had no pain between August 2006 and May 2007 other than for two days in December 2006 and three days in May 2007.

[40] Gradek was last seen by Dr. Milne June 15, 2009.  There were no specific complaints although he was still experiencing occasional right side pain.  This did not prevent him from engaging in vigorous exercise.  I accept Dr. Milne’s summary as a fair summary of the injuries and consequences with one exception, as noted below.  Dr. Milne summarizes:

In summary, Mr. Gradek Henryk was involved in a motor vehicle accident in May 13, 2006.  He incurred soft tissue injuries to the neck and lower back which resulted in him missing 4 weeks of work in 2006.  His injuries were not substantial and he shows no evidence of long term damage as a result of this motor vehicle accident.

The parties agree that Dr. Milne’s reference to four weeks of missed work in 2006 is in error as earlier in the report he specifies three weeks which is also consistent with employer records.


The New BC Supreme Court Civil Rules – a More Detailed Look

Written by admin on . Posted in Civil Procedure, Uncategorized. 118 Comments on The New BC Supreme Court Civil Rules – a More Detailed Look

Due in part to my recent articles on the New BC Supreme Court Civil Rules I had the opportunity to lead a discussion on the new rules this weekend before a group of distinguished BC Personal Injury Lawyers at the Westin Bayshore Hotel.
Afterwards several lawyers in the audience approached me for a written summary of my presentation.  Not having one handy I determined this would be as good a place as any to produce a written summary so here goes:
Introduction:
As many of you know the BC Supreme Court Rules have been overhauled.  The New BC Supreme Court Civil Rules come into force on July 1, 2010 so anyone with a BC Civil Practice needs to quickly get up to speed on these Rule Changes.
The good news for those of you not familiar with the New Rules is that they are largely “new” in name only.  More than anything else the “new” rules are simply the current rules renumbered and reorganized in what is supposed to be a more user friendly fashion.  About 95% of the current rules are left intact under the new system with the exact or almost exact language in place.
This is good news for lawyers familiar with the current system as many of the precedents we are familiar with interpreting and applying the current Civil Rules will continue to be of use under the new system.
Proportionality:
There is, however, one important exception to the overall similarities and that is that the “object” of the New Rules has changed.  Under the new system the object will be “securing the just, speedy and inexpensive determination of a proceeding on its merits, including, so far as is practicable, conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding”
Since the New Rules will be subject to this overall concept of “proportionality” there is room for some new direction in the interpretation and application of the rules which have been reproduced word for word from their current form.
Although the new rules are largely the same as the current ones there are a few substantive changes that are worth highlighting.
Starting a Civil Action:
The first thing worth noting is that the Writ of Summons and the Appearance to a Writ of Summons have been abolished.  To start a claim under the new system you file a “Notice of Civil Claim” and to respond to this you file a “Response to a Civil Claim“.   These are nothing more than the Statement of Claim and Statement of Defence that we have under the current system.
When the new rules were being debated there was some discussion in shortening the amount of time a party had to serve a Notice of Civil Claim once filed.  Fortunately this change did not make its way into the final draft and litigants will still have one year within which to serve the Notice after filing.  This time period often comes in handy in the prosecution of personal injury claims with an unknown prognosis.
Changes to the Discovery Process:
Once the lawsuit is started the New Rules have made some changes to the Discovery Process, with respect to Discovery of Parties, Documents and Witnesses.
Discovery of Documents:
The “Demand for Discovery of Documents” has been abolished.  Instead, all parties to a civil action will have an automatic obligation to make discovery of documents within 35 days at the end of the “pleading period“.  Rule 7-1(9) creates a continuing obligation on parties to ensure that their list is up to date.  Failure to do so may prevent a party from putting documents into evidence (Rule 7-1(21)).
If a party is dissatisfied with the disclosure they have received they can make an application for a supplementary list of documents as set out in Rule 7-1(11).
Significantly, the test for what documents are discoverable has been altered.  Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
Examinations for Discovery:
Moving on to Examinations for Discovery a few noteworthy changes have been made.  Under the current system there is no time limit to the length of discoveries.  If faced with an uncooperative party or a long-winded lawyer these can go on for days and days.  This has been changed under the new system with a 7 hour cap on examinations for discovery.  This cap can be lifted with the consent of the parties or with Court order.    Rule 7-2(3) sets out the factors the Court can consider when deciding whether to permit a longer discovery.  These factors are worth reviewing and include the conduct of the party and the conduct of the examining lawyer
An important examination for discovery loophole has also been plugged.  Oftentimes questions asked at discovery are answered after the fact by letter further to “requests” made at discovery.  Unfortunately the current rules do not provide any mechanism for the admissibility of such evidence at trial.   While such evidence would normally go in without incident one could not be guaranteed such an outcome if faced with an uncooperative opposing lawyer. This has been remedied under Rule 7-2(23) of the New Rules which holds that answers made to discovery requests by follow up letter are deemed to be questions and answers given under oath at the examination for discovery.  This change will give counsel more confidence that they can use admissions made further to requests to advance their case or damage their opponents at trial.
Interrogatories:
Interrogatories are as good as dead under the New Rules.  While they still exist Rule 7-3(1) does not permit their use except with consent or with court order.  This is welcome news with respect to personal injury claims as some defence lawyers oppressively use interrogatories in an attempt to get discovery of information multiple times.
Discovery of Witnesses:
The current system does little to assist litigants in determining which lay witnesses their opponents will bring to trial.  This has been changed under the new rules and the Court will have greater powers to compel such disclosure.
Parties to civil actions will be able to request “Case Planning Conferences” and “Trial Management Conferences” (I discuss these at greater length below).
The court has the power to order disclosure of witness information at these conferences.  Specifically under Rule  5-3(j) the court can make an order with respect to “witness lists” at a Case Planning Conference.  Even if no such order is made parties will need to disclose names and addresses of all lay witnesses they will rely on at least 28 days before trial as set out in Rule 7-4(1).
At Trial Management Conferences Courts can go further and have the power to order “will say” summaries of lay witness evidence as set out in Rule 12-2(g).  Time will tell how often such orders are made but given the fact that one of the well established purposes of the Rules is to avoid trial by ambush I imagine such orders will be made routinely in personal injury claims.
Expert Witnesses:
One of the biggest changes under the new rules is that relating to expert opinion evidence.  I have written about this before and you can click here to read my previous summary of these important changes.
Fast Track Litigation:
Another significant change is that relating to fast track litigation.  I have previously written about these changes and you can read my previous article by clicking here.
CPC’s and TMC’s:
As mentioned above the new rules have introduced Case Planning Conferences and Trial Management Conferences.  These give the Court greater control and power over an action earlier in the litigation process and the Rules discussing these conferences are worth reviewing.
Briefly any party to a civil action may request a Case Planning Conference once the Pleading Period expires.  The court can also order such a conference on its own motion.  Once set the litigants will need to filed a Case Plan Proposal which will include plans for discovery of documents, examinations for discovery, dispute resolution, expert evidence, witness lists and trial estimates and intended mode of trial.  Affidavits will not be permitted at CPC’s and instead the court orders will be based on submissions of the parties (or their counsel).  Rule 5-3 sets out the orders a Court can make at a CPC.
Originally it was proposed that parties would have to personally attend CPC’s.  Fortunately this requirement did not make its way into the final draft and parties are permitted to attend via counsel as set out in Rule 5-2(2).
Trial Management Conferences (TMC’s) will be required in all actions.  These must be held at least 4 weeks before trial and “if practicable conducted by the judge who will preside at trial”.  This is a welcome requirement as under the current system litigants rarely know who their judge will be until a day or two before trial.  Knowing who your judge will likely be ahead of time will assist in preparing your trial in accordance with such a  judge’s preferences and it will certainly be a welcome change for the judge to know something about the case a month or more before trial.
Rule 12-2(9) sets out the orders that Judges can make at TMC’s and these are worth reviewing.
At first read it appears that parties must personally attend TMC’s although Rule 12-2(5) sets out an exception permitting a lawyer to appear provided that the party “is readily available for consultation during the TMC, either in person or by telephone“.
Transition:
Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
There is a bit of leeway built into the transition process as Rule 24-1(14) states that “If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.”    This is very little leeway however and the new Rules will be in effect by July with no exceptions after September so now is the time for all of us to start getting up to speed.

More on BC Injury Claims and Mode of Trial

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 52 Comments on More on BC Injury Claims and Mode of Trial

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.

$70,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court Awarding damages as a result of a BC Car Crash.
In today’s case, (KT v. AS) The Plaintiff was involved in a motor vehicle collision while seated as a passenger in 2005.  It was a significant intersection collision.  The Plaintiff was 17 years old at the time.  The Plaintiff claimed that she suffered both physical and psychological injuries as a result.
Madam Justice Ballance largely rejected the Plaintiff’s claim for accident related psychological injuries but did accept the claim for physical injuries.  In awarding the Plaintiff $70,000 in non-pecuniary damages the Court summarized the Plaintiff’s accident related physical injuries as follows:

[210]     According to the plaintiff, since the accident she has felt an ache along with tightness and sore muscles in her low back.  She says that every few weeks the pain is so intense that she keels over.  She testified that in the first six months or so following the accident, her neck and muscles were stiff and knotted, particularly when her head was bent.  Her headaches would follow at least once per week, building up slowly from the back of her neck.  At times they lasted an entire day.  Unlike the headaches that she experienced prior to the accident, eating did not alleviate the pain in her head.  Also within the initial six months time frame, the plaintiff said she would feel a sharp pinching sensation in her upper back/trapezius area a few times each month that seemed to come out of nowhere.  She testified that at her last appointment with Dr. Smith roughly 22 months post-accident,  her neck was still stiff and she was still experiencing intermittent sharp pinching pain in her shoulder blade/trapezius area.  Her low back continued to produce a dull ache most of the time that fluctuated considerably in intensity depending on her activity.

[211]     The plaintiff says that she has not had a pain-free day since the accident.  In terms of her current symptoms, the plaintiff claims that her low back pain, of variable intensity, persists and is her dominant problem.  Physical activities such as soccer, jogging and extensive walking, climbing up or descending stairs can cause a flare-up of pain.  However, the postures that are most aggravating are those which appear to be innocuous, such as sitting and static standing for prolonged periods.

[212]     The plaintiff also continues to experience episodic pain in her neck and upper trapezius area.  She claims that the jabs of pain in her shoulder blade area have become infrequent, flaring up roughly once per month.  Although she still suffers headaches, especially when she sits down for long periods to study, they have substantially diminished in their frequency.  Her hips and “upper butt” area have not caused her difficulty for a very long time.

[213]     The defence concedes that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back.  As to her low back injury, the defendants assert that, at most, the accident caused a temporary aggravation of an “ongoing injury process” due to her pre-existing injuries and core weakness.  It should be evident from my discussion of the expert medical evidence and, specifically, my disapproval of Dr. Hepburn’s opinion, that I find the evidence does not support the defendants’ position that the plaintiff’s current low back pain is basically the same as the dysfunction in her upper “butt” sacroiliac joint or hip regions experienced before the accident.

[214]     The evidence amply establishes that the accident caused musculoskeletal injuries to the plaintiff’s neck, upper trapezius (left shoulder area) and her lumbar spine.  Relying on Dr. Hershler, Dr. Jung and Ms. Cross, I also find that it is more probable than not that the accident injured the facet joints of the plaintiff’s lumbar spine.  I find, as well, that it caused her headaches secondary to her neck pain, injured her left sacroiliac joint and aggravated her pre-accident difficulty with the right side of that joint.  On balance, I am not persuaded that she suffered a costovertebral injury as opined by Dr. Jung.

Another interesting aspect of this decision was the Court’s discussion of the Defence Medical Evidence.  The Defence hired Dr. Hepburn, a retired orthopaedic surgeon, to conduct a so-called ‘independent medical exam‘ of the Plaintiff.  Madam Justice Ballance largely rejected this expert’s evidence and in doing so made the following critical comments:

191]     Since his retirement in 2007, Dr. Hepburn’s medical practice has been solely devoted to conducting independent medical examinations.  Virtually every referral examination he receives comes from defence counsel and ICBC.

[192]     By his own admission, a mere 10%-15% of Dr. Hepburn’s practice prior to his retirement involved soft tissue injuries, and even then he was not involved in their ongoing management and treatment.  Dr. Hepburn testified that, while in practice, he did not treat patients with back injuries who had not suffered a fracture, slipped disc, disc prolapse or other type of injury requiring surgical intervention.  Generally, he would not even see such patients and would typically refer them to a specialist better trained to treat ongoing non-orthopaedic soft tissue injuries, such as a physiotherapist and physiatrist.

[193]     Dr. Hepburn could not recollect treating any costovertebral joint injuries, and testified that he only treated orthopaedic facet joint injuries (dislocations and fractures) for which surgery can produce some benefit.

[194]     As Dr. Hepburn testified, it became apparent that, although he was qualified as an expert in the diagnosis and prognosis of soft tissue injuries, his expertise lies almost exclusively in the field of orthopaedics.  This, however, is not an orthopaedic case.  It is a claim involving chronic soft tissue injuries which cannot be repaired through surgical intervention.

[195]     The plaintiff told Dr. Hepburn that her major problem related to her low back.  She also complained of pain in her left shoulder, a stiff neck, and headaches.  Dr. Hepburn agreed that the plaintiff likely suffered some soft tissue injury to her neck and knee from the accident.  However, he found it unclear as to whether her lower back pain was connected to the accident.  In this regard, he seemed to place some reliance on his understanding that there had been no complaint of back pain noted in the plaintiff’s medical records in the months following the accident.  That is a misconception.  The physiotherapy records are replete with the plaintiff’s complaints of low back pain in the months immediately after the accident.  The treating physiotherapist’s discharge note, which formed part of Dr. Smith’s file, leaves no doubt that the plaintiff’s lumbar spine was the chief area of treatment throughout the many sessions.  I can only conclude that Dr. Hepburn’s review of those records was superficial.

[196]     As an aside I would also note that the plaintiff’s controversial ICBC statement tendered into evidence by the defence itself refers to complaints of low back pain within the first two weeks following the accident.

[197]     In addressing the plaintiff’s pre-accident physical difficulties, Dr. Hepburn seemed to suggest that it would be legitimate to interpret her physiotherapist’s notations of sacroiliac joint pain as being medically equivalent to a notation of unspecified low back pain.  The implicit suggestion was that the plaintiff’s post-accident low back pain is the same as her sacroiliac joint complaints before the accident and, accordingly, was not caused by the accident.  He went so far to say that, in all likelihood, the plaintiff actually had low back pain and not sacroiliac joint dysfunction when she saw her physiotherapist before the accident.  I have previously made clear that I reject the free-floating notion that a physiotherapist would confuse those distinct anatomical areas.  His evidence on this point distinguished Dr. Hepburn from the other medical experts who gave evidence on the point.  It caused me considerable concern.

[198]     I also found it strange that in his report, Dr. Hepburn described the plaintiff’s headache complaints as falling beyond his area of expertise.  The preponderance of all of the other medical opinion evidence, which I find credible, is that the plaintiff’s post-accident headaches probably stem from her injured neck.  In his report, Dr. Hepburn did not allow for the prospect that the plaintiff’s headaches could be cervicogenic in origin, and represented referred pain from her injured neck.  He was only prepared to admit that potential in cross-examination.  Instead, in his report he had implied that the plaintiff’s headaches had a psychological source by suggesting that they could be addressed by medication for anxiety.  In my view, Dr. Hepburn’s assessment of the plaintiff’s ongoing headaches was not evenly balanced.  That too was of concern.

[199]     Dr. Hepburn did not find a restricted range of movement in the plaintiff’s spine.  He explained that the dual inclinometer applied by Dr. Jung is not used by him or any orthopaedic surgeon to his knowledge.  That does not mean that measurement with that device is not the gold standard.  I was most impressed with Dr. Jung’s explanation of the frailties of the so-called “eyeballing” assessment of range of motion and the superior measurement capability of the device he used.

[200]     Dr. Hepburn was adamant that the manner in which Dr. Jung and Dr. Hershler purported to diagnose a potential facet joint injury was not adequate.  He testified that a definitive diagnosis cannot be made without proper imaging studies such as a bone scan, CT scan or MRI.  He stood by his opinion that there was no facet joint injury that he could detect on his examination of the plaintiff.  Dr. Hepburn’s comments regarding the diagnosis of facet joint injury illustrates the difference between the medical approach to diagnosis for the purposes of determining causation, and the legal approach to the question of causation.  As noted by the Supreme Court of Canada in Snell v. Farrell, [1990] 2 S.C.R. 311, [Snell ] at para. 34:  “Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”

[201]     With respect to Dr. Jung’s diagnosis of costovertebral injury, Dr. Hepburn opined that such an injury is quite rare and would normally be associated with severe trauma such as in an individual with broken ribs.  He suggested that it would take a “divine talent” to diagnose this type of injury based on physical/clinical presentation alone.

[202]     Relying on Dr. Hepburn’s opinion, the defence argues that the plaintiff’s subjective pain complaints which have continued for more than four years after the accident are inconsistent with the fact that her spine has suffered no structural damage or other ominous pathology.  The underlying logic appears to be that pain and chronic injury do not occur in the absence of orthopaedic or other structural injury.  That notion offends common sense and is blind to the credible explanations given by Drs. Jung and Hershler and Ms. Cross as to the nature of soft tissue injury.

[203]     In the end, I consider it unsafe to give any weight to the opinions expressed by Dr. Hepburn.