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BC Supreme Court Confrims Strict Adherence Necessary to Trigger Rule 37B

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized. 51 Comments on BC Supreme Court Confrims Strict Adherence Necessary to Trigger Rule 37B

Reasons for judgement were released this week by the BC Supreme Court confirming that strict adherence to the requirements of Rule 37B are necessary for a pre-trial settlement offer to trigger costs consequences. In this week’s case (Wormell v. Hagen) the Third Party to the lawsuit made a pre trial offer stating “the Third Party offers to settle the Defendant’s claim(s) for any contribution or relief from the Third Party in this proceeding on the following terms: Dismissal of the Third Party Notice; and costs in accordance with Rule 37(22) and (37)”

After trial the Defendant’s claims against the third party were dismissed.  The Third Party brought an application for double costs under Rule 37B as they beat their pre-trial settlement offer.  Mr. Justice Goepel refused to order double costs holding that the pre-trial settlement offer did not comply with the strict requirements of Rule 37B thereby giving the Court no authority under the Rule.

Mr. Justice Goepel reasoned as follows:

[5] Rule 37 was repealed by B.C. Reg. 130/2008, effective July 1, 2008.  At that time Rule 37 was replaced by Rule 37(b) which provides that:

37B(1) In this rule, “offer to settle” means

(a)      an offer to settle made and delivered before July 2, 2008 under Rule 37, as that rule read on the date of the offer to settle, and in relation to which no order was made under that rule,

(b)      an offer of settlement made and delivered before July 2, 2008 under Rule 37A, as that rule read on the date of the offer of settlement, and in relation to which no order was made under that rule, or

(c)      an offer to settle, made after July 1, 2008, that

(i)         is made in writing by a party to a proceeding,

(ii)        has been delivered to all parties of record, and

(iii)       contains that following sentence: “The … [name of the party making the offer]… reserves the right to bring this offer to the attention of the court for consideration in relation to costs after the court has rendered judgment on all other issues in this proceeding.” [B.C. Reg. 130/2008, s. 1]

[6] The offer served by Mr. Moses on the defendant does not contain the wording required in Rule 37B(1)(c)(iii)…

[7] In Lau v. Rai, 2009 BCSC 696, Powers J. considered the effect of a non-compliant offer and held that a non-compliant offer did not constitute an “offer to settle” as defined under Rule 37B.

[8] I agree with Powers J.’s conclusion.  “Offer to settle” is a defined term.  A proposal concerning costs made subsequent to July 1, 2008 that does not comply with the provisions of Rule 37B(1)(c) is not an “offer to settle” as defined in the Rules and does not trigger the cost options set out in Rule 37B(5).

[9] In the result, therefore, the third party’s application for double costs is dismissed.  I confirm the cost order set out in para. 144 of my initial reasons.  The defendant is entitled to the cost of this application to be set off against the costs otherwise awarded to the third parties.  As the third parties were both represented by the same counsel at trial and took the same positions with respect to defending the third party claim the third parties are collectively only entitled to one set of costs:  Malik v. State Petroleum Corp., 2009 BCSC 115.

Scope of Neuropsychological Evidence in BC Brain Injury Cases Discussed

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.


Reasons for judgement were published today on the BC Supreme Court website dealing with the scope of permissible neuropsychological opinion evidence in BC Brain Injury Cases.
When ICBC or other BC brain injury cases go to trial a neuropsychologist is a common type of expert witness called by both Plaintiff and Defence Lawyers.  Neuropsychologists are extensively trained with respect to the cognitive and behavioural consequences of brain injuries and for this reason their evidence is often vital in the prosecution of brain injury claims.
In today’s case (Meghji v. Lee) the Plaintiff alleged she suffered a traumatic brain injury.  In support of her case the Plaintiff sought to have a neuropsychologist give opinion evidence with respect to the cognitive and behavioural sequelae of brain injuries and also with respect to whether the Plaintiff suffered from organic tissue to her brain.  The Defence lawyer objected claiming the latter opinion is outside of the scope of a neuropsycholgists permissible expert opinion.  Mr. Justice Johnston agreed with the defence objection and summarized and applied the law as follows:

[27] Counsel for the plaintiff wants Dr. Malcolm to be permitted to give an opinion on whether Ms. Meghji has had an injury to her brain. I looked briefly at Dr. Malcolm’s written reports, and in his first report, the one of February 1, 2007, Dr. Malcolm provides an overview of the place of psychometric testing in his overall task in this way. He says:

Once the test results are determined to reflect the person’s neuropsychological status with acceptable accuracy, the question remains as to whether clinically significant test results reflect organic damage, or stem from other factors, such as psychological causes. The neuropsychological process considers all of these possibilities in reaching diagnostic conclusions. The conclusions reached are based on a balance of probability, the strength of which is indicated where possible.

[28] At the risk of appearing to be overly semantic about this analysis, I take it that what counsel want Dr. Malcolm to be able to do is to testify by way of opinion about whether or not there has been some form of harm or damage to the tissues of the brain of Ms. Meghji as opposed to some form of harm or damage to the mind or emotions or personality of Ms. Meghji. Whether there is a distinction between the brain as an organ of the body, on the one hand, and the mind and personality of the person in whose body the brain is found, on the other, is a metaphysical question that I hope I never have to answer in a court of law. I am going to confine myself to what I think is in issue, and that is Dr. Malcolm’s qualifications as a neuropsychological and whether they permit him to provide the ready-made inference through opinion on whether there has been physical harm or damage to the brain as an organ of the body, and in my view, they do not.

[29] The statutory regime does not, in my view, go any further than to allow testing, assessment, diagnosis of, and therefore opinions on the abilities, aptitudes, interests, et cetera, or the behaviour, emotional, or mental disorders, that is, disorders of the mind. These conditions may arise with or without damage to the structure or tissues of the brain. They may be associated with or flow from injury or damage to the brain itself. They may arise from or flow from other causes. It does not necessarily follow that because Dr. Malcolm is permitted by statute to test, assess, or diagnose behavioural, emotional, or mental disorder that he must therefore be permitted to give in evidence his opinion that the cause of any of these conditions stems from an injury to the tissues or structures of the brain.

[30] In my view, Dr. Malcolm’s qualifications do not go so far as to permit that opinion.

[31] That does not say that Dr. Malcolm cannot give, in evidence, his opinion based upon the results of his testing, nor does it prevent Dr. Malcolm from giving an opinion on whether the test results as evaluated by him are of a nature, kind, or quality seen in people who have been diagnosed as having had organic brain injuries.

[32] In my view, the distinction drawn by Mr. Justice Clancy in Knight remains appropriate, and that is, Dr. Malcolm is qualified to give his opinion on the cognitive and behavioural sequelae of brain injuries and to indicate the relative likelihood of any cognitive and behavioural abnormalities being the consequence of a traumatic brain injury, but to paraphrase Mr. Justice Clancy, it does not permit him, that is, Dr. Malcolm, to diagnose physical injury and the manner in which it was incurred.

[33] It therefore follows that Dr. Malcolm will not be permitted to give his opinion on whether Ms. Meghji has had an injury to the tissues of her brain or, obviously, as to the cause of any such injury, but he will be permitted to testify as I have indicated.

BC Supreme Court Confirms Mandatory Nature of Rule 68

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on BC Supreme Court Confirms Mandatory Nature of Rule 68

Further to my previous posts on this topic reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing the mandatory nature of Rule 68,
Although previous cases have addressed this point, today’s case is important because it is the first such case that I am aware of from a BC Supreme Court Judge (the previous cases were decisions of Masters).
In today’s case (Berenjian v. Primus) the Plaintiff sued for injuries as a  result of a BC Car Crash.  The claim was set for trial in December, 2009.  The Defendants set the matter for Jury Trial.  The Plaintiff then brought a m motion to move the case into Rule 68 which would have the effect, amongst others, of eliminating the possibility of trial by Jury.
The Plaintiff pointed to the fact that this case was worth less than $100,000 and argued that Rule 68 was mandatory.  The Defendants opposed the motion.  After hearing submissions Mr. Justice Punnett agreed with the Plaintiff and held as follows:
[22] Subrule (9) contemplates an action becoming an expedited action after it has been commenced…

[35] I do not agree that Rule 68 cannot be invoked once the pleadings are closed. If the rule is mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a mandatory rule and, as such, no provision is required for the court to order that the rule does apply to a particular action. However, because it is mandatory, a provision was needed to remove actions from the rule.  The absence of the endorsement is simply an irregularity in actions which meet the criteria of Rule 68(2).

[36]         In my view Rule 68 places no time limit for it to be brought into play…

[45]         As noted above the principal of proportionality pervades Rule 68. Rule 68(13) requires that “[i]n considering any application under this rule, the court must consider what is reasonable in relation to the amount at issue in the action” (emphasis added).

[46]         As in Uribe, a jury trial is pending. Given the amount involved (and the defendants do not allege that the claim is worth an amount over $100,000), I am of the opinion that the matter should proceed under Rule 68. It is not reasonable that a claim in the range of $25,000 should proceed to a jury trial for the reasons noted earlier in Uribe. To do so would defeat the purpose of Rule 68.

[47]         Neither party has brought an application under Rule 68(7) for an order that Rule 68 does not apply. The plaintiff seeks an order transferring the proceeding to Rule 68. The defendants oppose that application. Given the mandatory nature of Rule 68, the question of whose obligation it is to bring the action formally under the rule raises an interesting issue that may well have relevance to any claim for costs arising from the late date of this application.

[48]         The plaintiff’s application is granted. There will be an order allowing for the the style of cause to be amended to read “Subject to Rule 68”. The trial currently set for December 7, 2009, shall proceed under Rule 68 without a jury. The plaintiff has tendered two expert reports pursuant to Rule 40A and the defendants one expert report. The parties have leave to call a total of three expert witnesses, namely  Dr. Wright, Dr. Mamacos and Dr. Leith.

This interpretation will likely remain good law under the New BC Supreme Court Rule 15 (the fast track rule which comes into force on July 1, 2010) as it also incorporates principles of proportionality, has the same mandatory tone of language and contemplates actions commenced outside of the fast track be brought into the fast track by filing :”a notice of fast track action” as contemplated by Rule 15-1(2).

Purpose of Rule 37B in Injury Litigation Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Uncategorized.

(Update: December 14, 2011 – the below decision was modified somewhat by the BC Court of Appeal in reasons for judgement released today)
____________________________________
Precedents with respect to costs consequences under Rule 37B are still developing as this rule is slowly being molded into place.  The one clear pattern under Rule 37B is that of varying results which is a welcome relief from the strict and sometimes harsh costs results that flowed to litigants who could not beat a formal offer under the old Rule 37.
Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing the purpose of Rule 37B in Personal Injury Litigation.
In today’s case (Fan v. Chana) the Plaintiff sued as a result of alleged disability flowing from a motor vehicle collision which occurred in 2000.  The Plaintiff’s claims were largely rejected at trial with Mr. Justice McEwan finding that the crash caused nothing more than an “unexceptional soft-tissue injury” and that the litigaiton was “driven largely by parents…and a series of medical interventions premised on their representations, which were significantly at odds with certain basic information“.  In the end Mr. Justice McEwan awarded the Plaintiff just over $31,000 in damages.  (click here to read my blog post on the trial judgement)
Before trial the Defendant made a formal offer of $75,000 plus costs.  Since the Defendant beat their formal offer they brought an application for costs under Rule 37B.  Illustrating just how expensive personal injury litigation can be the Plaintiff’s costs and disbursements totaled over $85,000 and the Defendants totaled over $43,000.
In making a rather conventional award giving the Plaintiff most of her costs and disbursements up to the time of the formal offer and awarding the Defendant their costs and the disbursements from the time of the offer forward Mr. Justice McEwan made the following useful observations about Rule 37B:

[14] I agree that it is very difficult to see how the plaintiff’s guardian ad litem could have accepted the offer given the medical evidence at hand.  I doubt that the public trustee would have considered it prudent.  Nor do I see how a pre-trial judge could have made a sensible suggestion without hearing the evidence.

[15] The circumstances of this case illuminate a difficulty that arises with some kinds of personal injury cases.  Those with evident injuries and predictable consequences can usually be located within a range that allows for informed discussion.  Some soft tissue injuries, however, sometimes take a course that includes poorly founded medical opinions that seem to verify claimants’ beliefs that they have been seriously harmed.

[16] I have observed in other cases that it is not part of doctors’ function to cross-examine their patients.  On the other hand, I do not think it asks too much of medical professionals who know their reports are going to be used in forensic contexts, that matters that can be verified by objective evidence be verified.  The cogency of medical reports erodes pretty quickly when, for example, someone who plays on the school basketball team is otherwise described as seriously limited in his or her physical capacities.  There were several examples of such difficulties in this case.

[17] It is disturbing to find that a matter has come to trial on a costly series of opinions, founded on premises that a rudimentary effort at fact checking would reveal to be dubious.  It is not asking experts to trespass the fact-finding responsibilities of the court to ask that they take some responsibility for the soundness of the premises on which they proceed.  It may be that disbursements for such reports ought to be more carefully scrutinized for value, when bills of costs are taxed.

[18] Rule 37B is relatively recent.  I do not say new, because it amounts to a restoration of a broad discretion which had been curtailed by a series of rules amendments, the last of which occurred in 1999.  Even then, the court retained its inherent jurisdiction until that was essentially eliminated with respect to costs by appellate rulings (see: Cridge v. Harper Grey Easton, 2005 BCCA 33, 37 B.C.L.R. (4th) 62; Bedwell v. McGill, 2008 BCCA 526. The results were sometimes hard on parties who had guessed wrongly about their claims. The recent history of the costs rule is briefly, and helpfully, set out by Goepel J., in A.E. v. D.W.J., 2009 BCSC 505.

[19] The reintroduction of judicial discretion in costs certainly serves the ends of justice. Costs should be a penalty for unreasonable conduct in the litigation, not a penalty for failing to guess the outcome. In this regard, Courts must, I think, extend some leeway to litigants holding honest but, ultimately, mistaken views of their claims. It is generally better that such expectations be disposed of at law, rather than discouraged.  The public should not be given the impression that there is no reasonable access to a legal resolution.  It must be recognized that some people will only be comfortable if they “hear it from the judge.” This should be a valid option for those who seek it, not a form of deemed unreasonableness.  As such, inducements to settle, and to avail oneself of alternate dispute resolution, ought to complement rather than obstruct judicial determinations…

[21] The obstacle to the acceptance of a reasonable settlement offer in this case was clearly a belief that, by the alchemy of endorsement by experts, a set of facts that was or should have been assessed as dubious would be accepted by the trier of fact.

[22] These factual weaknesses should have been evident by the time the offer was made, but by then, a great deal had been invested in medical and other reports.  It seems likely that that investment contributed to an unreal expectation on the part of the plaintiff’s guardian.

[23] I am of the view that the fairest disposition of costs in the circumstances is to allow the plaintiff’s costs and disbursements to the date of the offer, and the defendant, its costs and disbursements thereafter, with the exception that I would disallow from the plaintiff’s disbursements the reports of Dr. Hahn, and the disallowed report of Dr. Kuttner.  Dr. Kuttner’s report was not proper opinion evidence.  Dr. Hahn’s reports should not be disbursements that the defendants should pay either before or after the tender of the offer to settle.

Joining 2 Separate ICBC Claims for Trial at the Same Time

Written by admin on . Posted in Civil Procedure, Uncategorized. 123 Comments on Joining 2 Separate ICBC Claims for Trial at the Same Time

If you are involved in 2 separate car accidents and start 2 separate Injury Claims in the BC Supreme Court is it possible to have the trials heard at the same time?
The answer is yes and such applications are governed by BC Supreme Court Rule 5(8) which states that “proceedings may be consolidated at any time by order of the court or may be ordered to be tried at the same time or on the same day“.
Today reasons for judgement were released by the BC Supreme Court (Miclash v. Yan) considering an application under Rule 5(8).  In granting the Plaintiff’s request to have multiple claims heard at the same time Master Keighley concisely set out the principles to be considered in these applications.  The Court summarized the law as follows:

[15] The application is brought pursuant to Rule 5(8) of the Rules of Court…

[16] The order sought is discretionary.

[17] Exercise of this discretion is governed by the principles set out in the decision of Master Kirkpatrick, as she then was, in the case of Merritt v. Imasco Enterprises Inc. (1992), 2 C.P.C. (3d) 275 at para. 18 and 19:

18.       None of the submissions of counsel address the real issue to be determined. That is, are the issues raised by the pleadings sufficiently similar to warrant the order sought and will the order make sense in the circumstances? An application to have actions tried at the same time thus requires an examination of circumstances which may be of a more general nature than is made under R. 27 or 19.

19.       I accept that the foundation of an application under R. 5(8) is, indeed, disclosed by the pleadings. The examination of the pleadings will answer the first question to be addressed: do common claims, disputes and relationships exist between the parties? But the next question which one must ask is: are they “so interwoven as to make separate trials at different times before different judges undesirable and fraught with problems and economic expense”? Webster v. Webster (1979), 12 B.C.L.R. 172 at 182, 10 R.F.L. (2d) 148, 101 D.L.R. (3d) 248 (C.A.). That second question cannot, in my respectful view, be determined solely by reference to the pleadings. Reference must also be made to matters disclosed outside the pleadings:

(1)        Will the order sought create a saving in pre-trial procedures, (in particular, pre-trial conferences)?;

(2)        Will there be a real reduction in the number of trial days taken up by the trials being heard at the same time?;

(3)        What is the potential for a party to be seriously inconvenienced by being required to attend a trial in which that party may have only a marginal interest?; and

(4)        Will there be a real saving in experts’ time and witness fees?

This is in no way intended to be an exhaustive list. It merely sets out some of the factors which, it seems to me, ought to be weighed before making an order under R. 5(8).

[18] To these considerations, Master Joyce, as he then was, added two more in the case of Shah v. Bakken, [1996] B.C.J. No. 2836, 20 B.C.L.R. (3d) 393, at para. 15:

Other factors which in my view can be added to the foregoing list are:

(5)  Is one of the actions at a more advanced stage than the other? See: Forestral Automation Ltd. v. RMS Industrial Controls Inc. et al. (No.2), unreported, March 6, 1978, No. C765633/76, Vancouver (B.C.S.C.).

(6)  Will the order result a delay of the trial of one of the actions and, if so, does any prejudice which a party may suffer as a result of that delay outweigh the potential benefits which a combined trial might otherwise have?

In my continued effort to cross reference civil procedure cases with the new BC Supreme Court Rules which will take effect on July 1, 2010 Rule 5(8) is replicated in full under the New Rules and can be found at Rule 22-5(8).  Accordingly, the principles set out above will likely continue to be useful in considering similar applications once the new rules come into force.

$40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Knee Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 63 Comments on $40,000 Non-Pecuniary Damages for Knee and Soft Tissue Injuries

Adding to this “pain and suffering case-law database” reasons for judgement were released today dealing with damages for a knee injury and soft tissue injuries sustained in a BC Car Crash.
In today’s case (Hill v. Durham), the Plaintiff was involved in a 2005 rear end accident.  The Plaintiff was a passenger at the time and the issue of liability (fault) was admitted at trial.  The trial focused on the extent of the Plaintiff’s accident related injuries and their value.  In total, damages of just over $77,000 were awarded including an award of $40,000 for non-pecuniary damages (money for pain and suffering and loss of enjoyment of life).
In arriving at this figure Mr. Justice Barrow summarized the Plaintiff’s accident related injuries and prognosis for these as follows:
[22] Dr. McKenzie saw Ms. Hill in early October 2006. In his consultation report of October 12, 2006 he wrote that Ms. Hill’s problem seemed to be localized to a particular tendon in the knee and he thought that it may be the “result of trauma during the motor vehicle accident”. He prescribed exercises and ordered some further diagnostic imaging. An MRI was performed in January 2007 and it revealed two things:  thinning of the patellar cartilage in the knee joint and greater than normal water content in one of the bones, a condition technically described as subchondrial bone marrow edema. Dr. McKenzie testified that edema such as that found in Ms. Hill’s knee is caused by one of two things:  trauma or excessive wear and tear. When it is caused by excessive wear and tear it is accompanied by other findings visible on x-ray. Those other findings were not present in Ms. Hill’s knee, and as a result Dr. McKenzie concluded that the edema she is experiencing is as a result of trauma. He noted that Ms. Hill’s left knee has neither of the conditions. He testified that the degree of trauma necessary to cause this condition would “not be trivial”. He said that the problems are consistent with the kind of trauma that might be sustained by hitting a knee on the dash in motor vehicle accident…

25]         To a degree the resolution of this issue and other issues turns on the reliability and credibility of Ms. Hill. In general I found Ms. Hill to be a careful and credible witness. She testified that she had experienced bumps, bruises and injuries of various kinds over the course of her life. She said that she had always recovered reasonably quickly and completely from these events. She expected to do likewise following this accident. In general she impressed me as someone not prone to dwell on or overstate her physical problems. I accept that she now believes she struck her knee in the collision, although she has reached that conclusion not because she specifically remembers doing so but rather on the basis of the circumstantial evidence. She testified almost in passing that at one of her first yoga classes, within a month of the motor vehicle accident, she told her teacher that she was experiencing difficulties with her right knee. I accept her evidence on that point, and accept that she became aware of the discomfort in her knee reasonably shortly after the accident. Further, I am satisfied that she did not strike her knee after the accident in a manner that would give rise to the condition Dr. McKenzie found. I think it more likely than not that, as Dr. McKenzie noted, Ms. Hill was experiencing a number of more significant pains in the immediate aftermath of the collision and it was only as those pains subsided and her activity level increased that she became aware of the difficulty in her right knee.

[26]         I am satisfied that Ms. Hill’s right knee problems are caused by the motor vehicle accident.

[27]         The prognosis for this injury is guarded. Dr. McKenzie’s opinion is that the condition is often chronic. In February 2007 he prescribed a knee brace for use when exercising in a way that strains the knee. In his opinion, Ms. Hill may require renewals of that brace as well as periodic support from physiotherapists and medications for pain and inflammation. Ms. Hill reported to Dr. Dodek in October 2008 that her knee symptoms were improving.

[28]         Ms. Hill’s other injury is to the soft tissues of her back. She has headaches secondary to that injury. In his October 28, 2008 report, Dr. Dodek expressed the view that her “long term prognosis for recovery…remains good” notwithstanding that almost three years had passed since the accident. Dr. Travlos, in his November 1, 2007 report, wrote that Ms. Hill’s headaches would continue to reduce in frequency and would likely return to their pre?accident level. As to her right mid and low back difficulties, he expressed no opinion on future prognosis. He did, however, encourage Ms. Hill to add cycling to her exercise program and to reduce her reliance on physiotherapy. He also thought that her consumption of over-the-counter analgesics could and should be reduced. Dr. Apel, in her September 12, 2008 report, concluded that the prognosis for complete recovery is guarded however the prognosis for significant symptom reduction is fair to good. In her view, Ms. Hill’s current exercise program is insufficient and with appropriate changes, including increased focus on stretching, she will experience further symptom reduction…

[34]         Turning to the authorities, the injuries sustained by the plaintiffs in Menhinick, Wery, and Houghton (Litigation Guardian of), are generally similar to those suffered by Ms. Hill. The prognosis for each of those plaintiffs, however, was more guarded than I find is the case for Ms. Hill. The injuries sustained by the plaintiffs in the other authorities cited by counsel for Ms. Hill are all significantly more serious. On the other hand, I am satisfied that Ms. Hill’s injuries are more significant than those suffered by the plaintiffs in Krogh and Job.

[35]         In summary, Ms. Hill suffered a moderate soft tissue injury to her back. That injury remains problematic almost four years after the accident. I am satisfied that it will continue to improve. Her knee injury is less painful but is likely to last longer, if not indefinitely. Based on all of the evidence and a consideration of all of the authorities cited by counsel, I find that the appropriate award for non-pecuniary damages is $40,000. Although not asked to, I would allocate that award $25,000 to the back injury and $15,000 to the knee injury. I have not reduced the award to account for Ms. Hill’s pre?existing knee problems because I am satisfied they would not interfere in any significant way with her recreational and other activities.

Another Rule 37B Case – Plaintiff Awarded Trial Costs Despite not Beating Defence Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized. 49 Comments on Another Rule 37B Case – Plaintiff Awarded Trial Costs Despite not Beating Defence Offer

(Please note the case discussed in this post was overturned on Appeal, you can click here for an updated post and click hear to read the BC Court of Appeal decision)
Reasons for judgement were released today dealing with costs consequences under Rule 37B.
Although Rule 37B has some flexibility to its outcomes, normally when a Plaintiff fails to beat a defence formal settlement offer after trial the Plaintiff is deprived of his/her costs and the Defendant is awarded theirs.  Today’s case had a result which departs from this norm.
In today’s case (Gehlen v. Rana) the Plaintiff was injured when she was a passenger involved in a rear-end car crash.  The Defendant admitted fault for the crash but denied liability to the Plaintiff claiming that the Plaintiff “was not present in the vehicle at the time of the accident“.  The Defendant made a formal offer to settle the Plaintiff’s claim for $22,000 plus disbursements.  The Plaintiff rejected this offer and went to trial.  After trial the Jury awarded the Plaintiff total damages of just over $13,000.
The Plaintiff brought a motion for her costs and the Defendant brought a counter motion for their costs from the time of the offer onward.  Mr. Justice Leask held that the Plaintiff should be awarded her full costs, even for steps taken after the formal settlement offer despite not beating the offer.  His reasoning was as follows:

[18]         As to s-s. (d), I consider two other factors to be relevant.  First, the defendant’s choice of trial by jury, which considerably increases the costs.  Second, the manner in which the defence was conducted – to accuse the plaintiff and her family of fraud – that accusation having been rejected by the jury.

[19]         Turning last to s-s. (a) – the most important question – whether the offer was one that ought reasonably to have been accepted.  On this issue, I agree with Goepel J.’s judgment in A.E. v. D.W.J., 2009 BCSC 505, at paragraph 55:

[55]      … this analysis is not one to be done based on hindsight once the final result is known.  The reasonableness of the plaintiff’s decision not to accept the offer to settle must be assessed without reference to the court’s decision.

[20]         I am satisfied that the defendant’s denial of liability, and the allegations of fraud that underlay that denial, dominated the plaintiff’s thinking at the time the offer to settle was made and, indeed, throughout the entire pre-trial period.  Knowing that her claim was not fraudulent and knowing the persuasive evidence she had to rebut the allegation of fraud, the plaintiff thought she had a good answer to the defendant’s “low ball” offer to settle.  With hindsight, it is obvious that her counsel did not anticipate the defendant’s vigorous attack on her credibility including the detailed attack on her employment resumé and the emphasis on her second accident.  Her counsel’s trial preparation did not include preparing her or her witnesses for these issues.  However, analyzing the plaintiff’s decision not to accept the defendant’s offer to settle without the benefit of hindsight, I am satisfied that it was not an offer that ought reasonably to have been accepted.

[21]         Analyzing all the Rule 37B(6) factors, I am satisfied that the plaintiff is entitled to a judgment under Rule 37B(5)(c) and is entitled “in respect of all … of the steps taken in the proceeding after the date of delivery … of the offer to settle, costs to which the party would have been entitled had the offer not been made” (emphasis added).

I turn now to the plaintiff’s submission for 1.5 times Scale B costs because of the allegation of fraud made by the defendant and the manner in which those allegations were pursued at trial.  Having taken that factor into account in my analysis of Rule 37B(6), I believe it would represent a form of “double counting” to award increased costs for this factor.  My conclusion is that the plaintiff is entitled to her costs and reasonable disbursements of the entire proceeding on Scale B.

$25,000 Non-Pecuniary Damages Awarded in Low Velocity Impact

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 1 Comment on $25,000 Non-Pecuniary Damages Awarded in Low Velocity Impact

Reasons for judgement were released yesterday (Boyd v. Shortreed) by the BC Supreme Court, New Westminster Registry, dealing with a Low Velocity Impact (LVI).  The Plaintiff testified that she was involved in a rear-end crash and that she was injured despite having minimal damage to her vehicle.  Interestingly, the Defendant denied that the crash happened at all.
Mr. Justice Harvey rejected the Defendant’s evidence and concluded that a crash did occur.  Specifically he held that:
[33] The plaintiff reported the accident on April 19, 2005 by telephone and advised the adjuster for ICBC of the damage to her vehicle and the fact she had been injured.  Without first bringing the vehicle to ICBC, she took the car to an auto body shop for repairs and the bumper was fixed.  She testifies that the total cost of repairs was about $360.  No documentary evidence concerning the repairs was ever produced in evidence.  Photographs of the rear bumper of the plaintiff’s vehicle were of little assistance in determining whether there was any damage visible.  It is conceded that the damage amounted to nothing more than an abrasion or scratch requiring repainting.  There was no structural damage to the plaintiff’s car…

[59] There were other inconsistencies in the evidence of the defendant which cause me to reject his evidence as to the happening of the incident.  Accordingly, wherever the evidence of the plaintiff and the defendant conflict, I accept the evidence of the plaintiff as being the accurate version of events.

[60] That being found, I conclude that the defendant struck the plaintiff’s car from the rear.  While I accept there was a situation of peril created by the driver of the tractor trailer, the proximate cause of the collision between the defendant’s vehicle and that of the plaintiff was the inattention of the defendant by travelling too close to the rear of the plaintiff’s vehicle or, alternatively, the condition of the brakes on his vehicle which did not allow him to slow his vehicle in time to avoid hitting the plaintiff’s vehicle.

[61] I do not find the plaintiff’s reaction to the danger created by the tractor trailer driver to be wanting and decline to apportion any fault for the accident to her.  She reacted appropriately to a situation of emergency created by another driver who is not a party to the action.

[62] As a result, the defendant is 100% liable for the collision and resultant damages.

In valuing the Plaintiff’s Non-Pecuniary Damages at $25,000 Mr. Justice Harvey made the following findings with respect to her accident related injuries:

[76] The only new complaint arising from the accident appears to be the onset of mid-back pain.  This is based mainly on self report.  The extent and duration of these symptoms are described in some detail in the reports of Dr. O’Connor and Dr. McKenzie.  This complaint seems to have occasioned the most pain and has persisted, although significantly improved, to the date of trial.  Her recovery was estimated by the plaintiff to be at 85% of normal when she last attended Dr. McKenzie in August 2009.  There is no ongoing disability related to the complaints nor has there been for some since late in 2007.

[77] In summary, the plaintiff suffered an exacerbation of her previous symptoms in her neck and lower back.  I find these complaints had substantially resolved to their pre-accident condition inside of one year.  In April of 2006, according to the notes of Dr. Shah, there was a further onset of lower back pain but, on the whole of the evidence, I cannot relate this flare up to the accident of April 2005.  The injury to her mid-back was as a result of the accident.  It persisted longer and caused her more discomfort than the exacerbation of her pre-existing symptoms.

[78] Accordingly, taking all of this into account, I assess general damages in the amount of $25,000 in respect of her soft tissue injuries.

$95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 53 Comments on $95,000 Non-Pecuniary Damages for Chronic Pain From 2 MVA's

Reasons for judgement were released yesterday dealing with an appropriate award of damages for soft tissue injuries and chronic pain lasting for over 6 years.
In yesterday’s case (Gosal v. Singh) the Plaintiff was involved in 2 BC Car Crashes.  The first in 2003, the second in 2005. The first crash was a rear end collision.  Fault was admitted.  As the Plaintiff was recovering from her injuries from the first collision she was involved in the second collision.
The second crash happened when the Defendant, who was parked, pulled out in front of the Plaintiff’s lane of travel.  Fault was not admitted but Madam Justice Loo held that the defendant was 100% at fault finding that he “moved his vehicle from a parked position without first determining that he could do so safely, and that (the Plaintiff) had no opportunity to avoid the collision.”
The Plaintiff suffered from various soft tissue injuries and chronic pain which lasted for over 6 years and still bothered the Plaintiff by the time of trial.  In valuing the Plaintiff’s non-pecuniary damages (pain and suffering and loss of enjoyment of life) at $95,000 Madam Justice Loo made the following findings:

[49] Ms. Gosal suffered mild to moderate soft tissue injuries to her neck, upper back, shoulders, and mid and lower back, which caused severe headaches. She was treated with physiotherapy, massage, and chiropractic treatments, but her recovery took longer because of her depression and anxiety. She was recovering when the second accident exacerbated her injuries, including her depression and anxiety.

[50] Dr. Khunkhun states that Ms. Gosal’s long-term prognosis is guarded because her symptoms have not resolved after such a long period of time since the accidents. She does not consider Ms. Gosal to be at an increased risk of any long-term sequelae such as osteoarthritis. She believes Ms. Gosal would continue to benefit from body conditioning and strengthening exercises. She observed that in the past Ms. Gosal benefitted from regular exercise and when she stops exercising regularly, her mood deteriorates and her pain increases.

[51] Dr. Manchanda last saw Ms. Gosal on September 24, 2008. She told him that she had pain on about four or five days a week, and no pain on about two days a week. She was still looking for employment in counselling. At that time, Dr. Manchanda felt that Ms. Gosal could work in a job that was sedentary or involved light physical duties. He also felt that Ms. Gosal could complete the majority of her household chores, but that she might require a break or assistance with the heavier chores, such as vacuuming or carrying heavy laundry.

[52] Dr. Manchanda’s prognosis has thus far proved to be accurate. Ms. Gosal has worked full-time since October 6, 2008 in a job that is fairly sedentary and involves only light physical duties. There is no evidence that she has taken time off work because of symptoms arising from the accidents…

[67] I prefer Dr. Sandhu’s opinion that Ms. Gosal is not seeking secondary gains. She was looking after the household and her children’s needs as best she could, and doing her best to continue with her studies. Having observed Ms. Gosal, and on all the evidence, I conclude that she is not malingering and that her complaints of pain and depression are genuine.

[68] She continues to improve, albeit slowly. I find that there are two to three days a week when she is not in pain. Full-time employment has assisted her both physically and emotionally. Though it is now more than six years since the first accident, and more than four years since the second accident, she still suffers from depression and pain. I anticipate that over the next few years, with a regular daily exercise program, her physical pain and depression will continue to improve but may not resolve completely.

[71] I find that circumstances of Ms. Gosal’s injuries are similar to those in Foran v. Nguyen, 2006 BCSC 605, 149 A.C.W.S. (3d) 419, where the award for non-pecuniary damages was $90,000, and Jackson v. Lai, 2007 BCSC 1023, 160 A.C.W.S. (3d) 276, where the award was $100,000.

[72] I consider an award of $95,000 for non-pecuniary damages to be appropriate.

In addition to this case’s value as a precedent for valuing non-pecuniary damages for chronic pain, this case is worth reviewing for the Court’s criticism of the expert witness called by the defense.

I’ve previously written about the duty of experts to the court and highlighted judicial criticism when experts ignore this duty.  In today’s case the court made critical findings with respect to Dr. Hymie Davis, a psychiatrist who billed over $290,000 to ICBC in 2008.  Specifically Madam Justice Loo found that Dr. Davis “was presenting a case for the defence rather than providing an impartial expert opinion.  Dr. Davis’ argument that (the Plaintiff’s) injuries should have healed and that she is seeking secondary gains or malingering, is at odds with his article “The Whiplash Injury“.

BC Supreme Court Addresses Scope of Expert Witness Cross Examination

Written by admin on . Posted in Civil Procedure, Uncategorized. 115 Comments on BC Supreme Court Addresses Scope of Expert Witness Cross Examination

Reasons for judgement were released today addressing the permissible scope of Cross Examination of an expert witness in a BC Injury Claim.
In today’s case (MacEachern v. Rennie) the Defendants called a physician to give expert opinion evidence.  This physician happened to be a treating doctor of the Plaintiff’s prior to her injuries.  While testifying the doctor was taken through his clinical records by defence counsel on an entry by entry basis.  The doctor was asked what happened on each of those clinic visits and in canvassing this the doctor gave evidence about the prognosis and treatment of Hepatitis C (which is an area the doctor apparently was not called to address).
The Plaintiff then wished to cross examine the doctor about treatments and the prognosis for Hepatitis C.  The Defence lawyer objected to this on the basis that such a cross examination would “call for new opinion that are not admissible since the Plaintiff has not served the defendants with notice of those opinion“.
Mr. Justice Ehrcke swiftly rejected the Defendant’s objections noting that they could not restrict the cross examination on a topic which they chose to ask the doctor about in direct.  Specifically Mr. Justice Ehrcke noted as follows:

[11]         With respect to the first point, the CN Defendants argue that the notice which they served on the plaintiff in connection with Dr. Glynn-Morris contains only treatment opinions and does not touch on the area of the plaintiff’s Hepatitis C. This argument misses the mark. The plaintiff is entitled to respond to all the opinion evidence led by the CN Defendants, not just that which was contained in the written statement of Dr. Glynn-Morris’ opinion. It was counsel for the CN Defendants who chose in direct-examination to ask Dr. Glynn-Morris about testing of the plaintiff for Hepatitis C. It was in direct-examination that Dr. Glynn-Morris opined that in 30 percent of people, Hepatitis C cures itself and disappears, and that he ordered a test to see if that is what had happened in Ms. MacEachern’s case. Having opened up that area in examination-in-chief, the CN Defendants cannot now restrict the plaintiff’s cross-examination about it simply on the ground that it was not covered in the written statement that they had delivered to the plaintiff.

[12]         In any event, the proposed evidence is also truly responsive as a rebuttal to the opinion of another expert witness called by the CN defendants, Dr. Baker, whose report entered at Tab 1 of Exhibit 61 states:

I note Ms. MacEachern had already contracted hepatitis C which with her ongoing ingestion of multiple drugs would likely have progressed with liver damage and possible cirrhosis and eventual liver failure.

[13] Nevertheless, the CN Defendants argue that even if the proposed line of questioning did not require notice pursuant to the provisions of Rule 40A, notice was still required because of the case management order made in respect of this trial on February 6, 2009, which provided, among other things, that the plaintiff’s reply or rebuttal reports were to be delivered by January 29, 2009. The CN Defendants point out that Dr. Baker’s report was delivered to the plaintiff on December 1, 2008. They submit therefore that any opinion evidence in reply to Dr. Baker’s report should have been delivered to them by January 29, 2009.

[14]         The short answer to this argument is that the deadlines set out in the case management order relate to expert witnesses that each party proposed to call as witnesses in their own case. The order does not, by its terms, require a party to give notice of the questions it proposes to ask in cross-examination of another party’s witnesses, even if those questions in cross-examination have the effect of eliciting an expert rebuttal or reply opinion.

[15] The case of Canadian National Railway Company v. Canada, 2002 BCSC 1669, 8 B.C.L.R. (4th) 323 cited by the CN Defendants is distinguishable, because that case did not deal with the effect of a case management order on questions asked of an opposing witness in cross-examination.

[16] To summarize:  the questions that the plaintiff proposes to ask in cross-examination of Dr. Glynn-Morris are proper, and to the extent that they elicit expert opinions, those opinions are proper reply or rebuttal. Such reply or rebuttal opinions elicited in cross-examination are not subject to the notice requirements of Rule 40A, or of the case management orders that were made in this case.