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Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized. 50 Comments on Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.
In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash.  Liability was admitted so the trial focused solely on quantum of damages.  The Plaintiff suffered serious injuries.   Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages.  In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff.  He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time.  Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems.  There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident.  However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area.  This pain continues, and has been referred to as a soft tissue type of injury.  Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident.  It is unlikely that there will be further recovery in this area.  I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area.  This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day.  I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so.  I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident.  That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident.  He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident.  These difficulties are particularly apparent the longer Mr. Slocombe works.  They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients.  These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident.  He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure.  He is in constant pain, and will probably be for the rest of his life.  He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée.  He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time.  His passion for carpentry has been lifelong.  It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness.  His enjoyment of life has been dramatically altered.  There will be an award for non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Reasons for judgement were released today (Testa v. Mallison) by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for injuries and losses suffered as a result of a 2004 BC Car Crash.
The Plaintiff’s vehicle was rear-ended while stopped in traffic.  The issue of fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s claim).  The Plaintiff suffered injuries to her low back, her neck, shoulders, chest and headaches.
Some of the Plaintiff’s injuries fully resolved, others did not.  By the time of trial the Plaintiff complained of the following ongoing problems “constant pain in her neck from the base of her skull up and down the neck to her shoulders and radiating into her head and temple area.  The pain is lowest first thing in the morning but builds up by afternoon and can get quite severe.  She experiences crying from the pain while in her car driving home.  She can’t stand even the sound of having the radio on.  Her sleep is most often disturbed and intermittent.”
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000, Mr. Justice Holmes accepted the following evidence:

[48] I accept Dr. O’Connor’s opinion that the 2004 motor vehicle accident caused the plaintiff:

1.       aggravation of a pre-existing neck condition and aggravation and worsening of her existing cervical spondylosis.

2.       cervicogenic headaches, with a migrainous component, and most likely triggered by neck pain.

3.       low mood, deconditioning and sleep disturbance.

[49] Dr. O’Connor’s prognosis is that the plaintiff’s ability to function is primarily determined by her ability to cope with her chronic pain.  That pain level has remained constant over a 2 to 3 year period and she rates it as severe.  Dr. O’Connor is of the opinion that the plaintiff’s pain symptoms are going to persist indefinitely.

[50] Treatment options are very limited.  Exercise with emphasis on core conditioning is paramount. A regime of pain and sleep medication is needed.

[51]         Dr. Shuckett examined the plaintiff September 10, 2008 and as with Dr. O’Conner was provided with comprehensive historic health care provider records of the plaintiff’s treatment for neck, shoulder, back and hip pain and headaches.  Dr. Shuckett’s diagnoses of injury in the 2004 accident are:

1.               cerviogenic headaches with migraine features

2.               whiplash injury of the neck mainly left sided neck pain but also with painfull trigger points

3. myofacial pain syndrome of neck and shoulder girdle region with painful trigger points.

[52] Dr. Shuckett considered causation and concluded at page 11 of her report:

Thus, I believe that her current pain in the neck and shoulder girdles and her headaches are predisposed to by her pre-existing history, but it sounds to me like this pre-existing history was not that significant in the three years before the subject motor vehicle accident of March 23, 2004.  She had mainly left hip girdle pain before the subject motor vehicle accident.

[53]         Dr. Shuckett’s opinion is that the plaintiff “…will be dealing with her symptoms in the long term future.

[54]         I prefer the opinions of Drs. Deernsted, O’Connor and Shuckett to that of Dr. Sauvio in regard to the plaintiff’s March 23, 2004 related injuries, their causation and consequence.

[55]         Dr. Deernsted and Dr. O’Connor have a significant advantage of treating the plaintiff over time.  Dr. O’Connor and Dr. Shuckett concluded a careful review of historic medical clinical records and specifically considered causation issues.

[56]         The plaintiff’s neck and shoulder pain and headaches prior to the March 23, 2004 accident were mainly related to her hip problem that occurred in 2001.  The neck and shoulder pain and headaches by the time of the 2004 accident were much diminished.  They had become only intermittent but she was left more susceptible to injury by subsequent trauma.

[57] The accident of March 23, 2004 aggravated those diminished but active symptoms as well as triggering some that were asymptomatic.  The combined injuries to the shoulder and neck are now very severe in their effect and likely permanent.

[58] The plaintiff’s low mood is a consequence of the injuries and their duration.  The plaintiff had a history of migraine headache experience but hey were generally stress related.  The constant migraine type headache she presently experiences is a consequence of her present injuries and triggered by her neck and shoulder pain.

GENERAL DAMAGES

[59]         The plaintiff’s life has been severely impacted by the result of her injuries sustained in the March 23, 2004 accident.  She has constant pain and headaches and suffers from sleep disturbance and altered mood.  She has experienced a substantial quality decline in her ability to work and in both her leisure and social life activities.

[60] The plaintiff is a motivated lady who will persist in using her long standing fitness and running activity to assist in controlling her chronic pain condition.  Unfortunately at most she may only be able to reduce her pain levels to more tolerable or manageable levels and is unlikely to enjoy a full recovery.

[61] I award general damages of $75,000.

BC Injury Claims and "Responsive" Expert Opinion Evidence

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

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).
If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”
One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.
Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”
This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).
In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:
The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.

Can You Record an "Independent Medical Exam" In an ICBC Injury Claim?

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized.

When ICBC sends you to an ‘independent’ medical exam for the purposes of litigation in the BC Supreme Court are you permitted to record the examination?
This issue was dealt with by the BC Court of Appeal in a 2006 decision (Wong v. Wong) in which the Court held that BC Courts do have the authority to permit audio recording as part of an order for an independent medical exam but that this discretion should be exercises sparingly.  Specifically the BC Court of Appeal said the following about the courts ability to permit audio recording as a term of an independent medical exam:

[44]           One would think that if the tape recording of a medical or psychiatric examination was thought likely to enhance the quality of such an examination, the medical profession would long since have adopted the use of audio tapes as a general practice.  The material before us shows that use of an audio tape recorder is not only not considered to be an advantage, but rather can be an impediment to a proper, independent examination.  Dr. Smith says that use of an audio tape recorder will alter the nature of a psychiatric exam, and may make the examinee reluctant to answer some questions.  These observations have the ring of simple common sense.  In fact, hundreds if not thousands of psychiatric examinations of both infant and adult plaintiffs have been conducted in this province under Rule 30, or its predecessors, without any suggestion that they might have been of better quality if tape recorded.

[45]           It may well be that the recollection of a plaintiff as to what was said on an examination will differ from the doctor’s notes or recollection.  As Brooke J.A. observes, “the rules proceed on the basis that there may be some disparity” in recollections.  But these differences can be tested in the usual way, as they have been for years.  As in the Bellamy case “… there is no suggestion on the record that any injustice has occurred.”

[46]           It was argued before us that an audio tape recording would provide the “best evidence” at trial of what was said in the examination, in the event of a conflict between the examinee and the doctor, and that the courts should endorse the use of technologies available to provide the best evidence.  The oral history and other information provided by the person being examined is often an important part of the foundation on which the examiner’s opinion is based.  However, any advantage to be gained by tape recording the interview must be weighed against the extent to which it would impede or impair a full and proper examination.  Absent unusual circumstances, I am not persuaded that the presumed advantage would outweigh the disadvantages.

[47]           Apart from any impairment of the examination itself, there are other concerns related to the audio taping of medical examinations.  No matter how good the technology, there will be failures.  A tape recording will no doubt be transcribed and there will be issues before and at trial over the transcription.  The transcript will add an unwarranted level of importance to the oral portion of examination, and another layer of adversarial complexity to the trial process.  None of these difficulties need be encountered.

[48]           While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

Today, reasons for judgement were released by the BC Supreme Court further dealing with this issue.  In today’s case (Kelly v. Sanmugathas) the Defendants sought to have a plaintiff examined by a psychiatrist.  The Plaintiff wished to have the examination recorded.  In permitting the recording Master Donaldson summarized and applied the law as follows:

[2] A number of authorities were cited specifically referring to Dr. Davis.  The decision of the Court of Appeal in Wong stands for the current state of law in British Columbia, namely, that if there is to be a recording it would be only in very limited situations.  Counsel on behalf of the plaintiff referred me to a number of decisions where it was concluded that Dr. Davis was an advocate for the defence and matters of that nature.  Those decisions do not concern me in this instance and do not lead me any closer to reaching the conclusion that the plaintiff should be able to record her visit with Dr. Davis.  What does give me concern are two references, Sinclair, Mr. Justice Hood in 2002, and McGowan, a 1992 decision of Madison, J. in the Yukon, both of which make reference to mistakes having been made.  Fraser, J. in the Edmonds case where he stated: “if [sic] mistakes, likely they were those of Dr. Davis”.  In the McGowan decision, Mr. Justice Madison stated “his opinion was thus based on an erroneous view of the facts.”

[3] Clearly it will be easy enough for a judge in this action to conclude how he or she should assess the opinion of Dr. Davis, but of concern to me, is whether or not Dr. Davis takes an accurate history.  Clearly the recollection of the plaintiff as to the history taken and the reliance on clinical records and the like, will assist the court in determining whether or not Dr. Davis in fact has misapprehension of the facts or he in fact was accurate so far as the facts given are concerned.

[4] I have concluded that recording is the least invasive way of ensuring that Ms. Kelly’s recollection of the facts which have been elicited from her and Dr. Davis’ recollection of the facts elicited from her are accurate.  Her evidence, by way of affidavit, interestingly enough, seems to indicate, if you will, self generated concern about Dr. Davis once she had discussions with her counsel about Dr. Davis.  It is also interesting to note that apparently her concerns only arose after she was ill and could not attend the 28 of May medical examination which had been arranged with Dr. Davis.

[5] Notwithstanding this state of affairs, I am satisfied there should be a recording.  It will be a dual recording:  one tape will be given to Dr. Davis and the other can be retained by Ms. Kelly.

$40,000 Non-Pecuniary Damages Awarded for "Plateaued" Chronic Mid Back Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court awarding damages for injuries and loss in an “unusually straightforward” personal injury case.
In this week’s case (Sharpe v. Tidey) the Plaintiff was involved in a 2006 BC Car Crash.  Fault was admitted by the Defendants lawyer leaving only the issue of quantum of damages to be decided at trial.
Mr. Justice Voith summarized the Plaintiff’s injuries as follows:
I find that since the accident Mr. Sharpe has had a constant and relatively significant level of pain in his mid-back area.  This pain increases after strenuous activity; yet nevertheless, as mentioned above, I accept that such activity assists in maintaining Mr. Sharpe’s baseline level of pain at a generally lower level…. I find that Mr. Sharpe’s present levels of back pain will likely remain static for at least the next 3-5 years.  It appears likely that over the longer term his symptoms will either actually abate or will be perceived by him to fade to some degree.  There is a real prospect that even over the long-term Mr. Sharpe will not fully recover from his injuries.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 the court summarized and applied the law as follows:

[44]         In my view, there are a number of cases provided to me by the plaintiff which are of particular value.  These were Kahle v. Ritter, 2002 BCSC 199 22 M.V.R. (4th) 275, Hicks v. GMAC Leaseco. Ltd., 2001 BCSC 1091, and Isert v. Santos, 1999 BCCA 42, 65 B.C.L.R. (3d) 104.  While each of these decisions involves a plaintiff whose claim had attributes that were different from the instant case, they share certain central features.  In each case the plaintiff was generally able to work following their motor vehicle accident, without interruption or with limited interruption.  They involved persons who were particularly active, whose level of activity and enjoyment of such activities defined them, and who had been able to maintain some or all of the activities, albeit in modified or limited form.  Thus, they involved individuals who were not disabled, but who suffered from some impairment of functionality.  Their recovery had largely plateaued.  In my view, however, the impairment suffered by the plaintiffs in these cases was somewhat more severe than that suffered by Mr. Sharpe.

[45]         Mr. Sharpe is a young man in the prime of his life.  Work, sport, travel and his relationship with Ms. Drinkwater are the cornerstones of his life.  Sport and travel, in particular, are central to his social relationships, his sense of well-being, and his activities with Ms. Drinkwater.

[46]         Mr. Sharpe lives with a constant level of pain that is exacerbated when he engages in the very things that give him pleasure.  His recovery appears to have plateaued.  The prognosis for further recovery for at least a number of years is poor.  Furthermore, increased demands arising from his career and the family he hopes to have are a concern for his future.  Conversely, I recognize that if Mr. Sharpe is to undertake graduate studies and have a family in the future, he will have less time to engage in these various sports or activities.  Furthermore, as he gets older it is inevitable that to some extent he would, in any event, be less involved in the more extreme activities in which he has historically participated.

[47]         In my view, in all of the circumstances, the appropriate award for Mr. Sharpe’s non-pecuniary loss is $40,000.

The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

Written by admin on . Posted in Civil Procedure, Uncategorized. 109 Comments on The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

One of the biggest changes in the new BC Supreme Court Civil Rules (click here and here to read my previous posts on these rules) are those with respect to the requirements for admissibility of expert reports.  These changes are significant for ICBC and other Personal Injury Lawyers because these types of lawsuits are heavily dependent on expert opinion evidence.  From medical doctors to engineers to vocational specialists, personal injury trials are perhaps more reliant on expert evidence than any other type of trial.
One thing we should all keep in mind is that as of July 1, 2010 ongoing lawsuits will be deemed to be started under the new rules.  This means that any report ordered now that will be used in trial after July 1, 2010 will have to comply with the new rules.  For this reason it is vital that lawyers and expert witnesses alike become immediately familiar with the new Civil Rules.
Under the current Supreme Court Rules expert evidence requirements are governed by Rule 40-A.  These are rather modest.  Rule 40A(2) requires that expert reports be exchanged “to every party of record at least 60 days before the statement is tendered in evidence” and Rule 40A(5) requires that the reports set out “the qualifications of the expert, the facts and assumptions on which the opinion is based, and the name of the person primarily responsible for the content of the statement”
Under the new BC Civil Rules requirements of expert reports are set out in Rule 11-6.  Below I reproduce Rule 11-6 in its entirety.  On review it is clear that the new rule has significant changes compared to the current Rule 40A.
One of the most obvious changes is the time when expert evidence needs to be exchanged.  Currently reports need to be exchanged 60 days before they are put into evidence.  The new rule requires reports to be exchanged at least 84 days ‘before the scheduled trial date‘ and goes on to create a second category of reports called “responding reports” which need to be served “at least 42 days before the scheduled trial date”
The other significant change relates to requirements for admissibility.    Rule 11-6(1) requires experts to be much more clear and detailed about how they arrived at their opinions as compared to the current Rule 40A.  Although, to be fair, these changes are really little more than a codification of the common law that has developed around Rule 40-A.
The new rule also improves on the disclosure obligations to opposing counsel.  Under the current rule opposing counsel is not entitled to review the experts working files and materials until the expert takes the stand.  This can lead to unnecessary delay and surprise at trial.  Under the new Rule 11-6(8) opposing parties are entitled to fulsome pre-trial disclosure of the experts materials which will let lawyers better prepare for cross examination.
Other parts of Rule 11 contain interesting provisions about court appointed experts, joint experts and the role of the expert in the lawsuit.  I hope to write about these shortly.  Overall these improvements will likely be for the better, however, lawyers and doctors can be stubborn and it may take some adjustment for all of us to get used to these changes.
RULE 11-6 – EXPERT REPORTS
Requirements for report
(1) An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert’s name, address and area of expertise;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
Proof of qualifications
(2) The assertion of qualifications of an expert is evidence of them.
Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at trial, or
(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert’s report at trial.
Service of responding report
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
Supplementary report of joint or court-appointed expert
(5) If, after an expert’s report is served under subrule (3) (b), the expert’s opinion changes in a material way,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and
(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.
Supplementary report of own expert
(6) If, after an expert’s report is served under subrule (3) (a) or (4), the expert’s opinion changes in a material way and the party who served the report intends to tender that expert’s report at trial despite the change,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and
(b) the party must promptly serve that supplementary report on every other party of record.
Requirements for supplementary report
(7) A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this
rule must
(a) be identified as a supplementary report,
(b) be signed by the expert,
(c) include the certification required under Rule 11-2 (2), and
(d) set out the change in the expert’s opinion and the reason for it.
Production of documents
(8) Unless the court otherwise orders, if a report of a party’s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,
(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:
(i) any written statement or statements of facts on which the expert’s opinion is based;
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and
(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert’s file relating to the preparation of the opinion set out in the expert’s report,
(i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or
(ii) in any other case, at least 14 days before the scheduled trial date.
Notice of trial date to expert
(9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.
Notice of objection to expert opinion evidence
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert’s evidence that the party receiving the report or supplementary report intends to raise at trial.
When objection not permitted
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.

New BC Supreme Court Civil Rules – Some Initial Thoughts

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

As I posted yesterday, the BC Government has announced a full overhaul of the current BC Supreme Court Rules to take effect on July 1, 2010. You can click here to read a full copy of the new Rules.  These new rules will apply to all BC Personal Injury and ICBC Claims prosecuted in the Supreme Court after they come into force.
I’ve now had a chance to review these new Rules in their entirety.  The first thing I noticed is that most of the new Rules are similar if not identical to the current ones in their wording.   This is very important as the countless precedents built up over the years interpreting the current rules should still be of significant assistance when applied to the new rules.
More than anything else, the new Rules are organized in a far better fashion than the current BC Supreme Court Rules.  This improvement is more coherent and logical and should make them easier to get through for people unfamiliar with Supreme Court Procedure.
In addition to improved organization, there are some significant changes made to the substance of these Rules.  None of these changes jumped out at me as particularly concerning for personal injury litigation and surprisinly the overall changes seem to be for the better.
For today’s post I’ll illustrate one example.   The current BC Supeme Court Rules have 2 competing ‘fast track litigation’ rules.  Rule 66 and Rule 68.  These rules both have some significant advantages and significant shortcomings for litigants.  These rules overlap and litigants wishing to take advantage of fast track litigation procedures are forced to choose between the 2 rules relative strengths and weaknesses.  Under the New Civil Rules these have been replaced with one “fast track litigation” rule.  This can be found in Part 15 of the new rules.
Rule 15, in my opinion, takes the best aspects of Rule 66 and 68 and leaves out most of their shortcomings. Rule 15, like Rule 68, applies to cases below $100,000.  It also applies to cases that can be completed in 3 days or less and this appears to be independent of the claims value.  This rule does away with the cumbersome ‘will say’ requirement of Rule 68 and allows 2 hour examinations for discovery.  This rule also increases the minimal costs allowable under Rule 66 and permits costs awards more reflective of conventional litigation in the BC Supreme Court.  The Rule also does away with the ‘one expert’ limit of Rule 68 which to date has kept most BC personal injury lawyers from using the rule.
Below I reproduce the new Rule 15 in full.  I’d be interested in the thoughts of other BC Injury Lawyers about the apparent improvements in this rule over our current fast track rules 66 and 68.
RULE 15-1 – FAST TRACK LITIGATION
When rule applies
(1) Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if
(a) the only claims in the action are for one or more of money, real property, a builder’s lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of
(A) all real property and all interests in real property, and
(B) all personal property and all interests in personal property claimed in the action by the plaintiff,
(b) the trial of the action can be completed within 3 days,
(c) the parties to the action consent, or
(d) the court, on its own motion or on the application of any party, so orders.
Subsequent filings
(2) If this rule applies to an action,
(a) any party may file a notice of fast track action in Form 61, and
(b) the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.
Damages not limited
(3) Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.
Rule does not apply to class proceedings
(4) This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.
Conflict
(5) These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.
When rule ceases to apply
(6) This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.
Case planning conference required
(7) Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.
Exception
(8) Subrule (7) does not apply to an application made
(a) for an order under subrule (6) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (9),
(c) under Rule 9-5, 9-6 or 9-7,
(d) to add, remove or substitute a party, or
(e) by consent.
Court may relieve
(9) On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if
(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or
(b) the application referred to in subrule (7) is urgent.
Trial to be without jury
(10) A trial of a fast track action must be heard by the court without a jury.
Oral discovery
(11) Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration
(a) 2 hours, or
(b) any greater period to which the person to be examined consents.
When discoveries must be completed
(12) Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.
Setting of trial date
(13) If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.
If trial will require more than 3 days
(14) If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and
(b) is not seized of the action.
Costs
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
(a) if the time spent on the hearing of the trial is one day or less, $8,000;
(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9,500;
(c) if the time spent on the hearing of the trial is more than 2 days, $11,000.
Settlement offers
(16) In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.
Taxes to be added to costs
(17) If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

More on BC Supreme Court Trials and Costs

Written by admin on . Posted in Civil Procedure, ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

I’ve previously posted that when a Plaintiff in a BC Supreme Court Lawsuit is awarded damages in the Small Claims Court Jurisdiction ($25,000 or less) the Plaintiff is usually not permitted to court ‘costs’.
This is so because Rule 57(10) of the Supreme Court Rules holds that:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there is sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released by the BC Supreme Court dealing with this section and the issue of when there is ‘sufficient reason for bringing a proceeding in the Supreme Court.’
In today’s case (Munro v. Thompson) the Plaintiff was awarded just over $12,000 for injuries sustained in a 2006 BC Car Crash.  The Defendant was apparently insured by ICBC and subject to ICBC’s Low Velocity Impact Defence.
The Plaintiff brought application seeking court ‘costs’.  He argued as follows:

[7]             The plaintiff says that “sufficient reason” is to be considered as at the time of commencement of proceedings: Riemann v. Aziz [2009] BCCA 448.

[8]             He says that at the date of commencement of the action, he had in hand the reports of two medical experts.  The conclusion arising from those is that it was a moderate/severe whiplash injury impacting on his future vocational capabilities, indicating a loss of capacity claim.

[9]             In these circumstances, counsel for the plaintiff contends there was good reason to bring his action in this court as opposed to the Small Claims division of the Provincial Court.

The defence lawyer argued that the Plaintiff should be deprived of ‘costs’ because the Plaintiff only recovered half of what could have been awarded in Small Claims Court therefore the Plaintiff should have started the lawsuit there.
In accepting the Plaintiff’s position Mr. Justice Williams applied the law as follows:

[22]         In order to determine the merit of the plaintiff’s claim for costs, it is necessary to examine whether he has shown that there was sufficient reason to have justified the decision to commence the proceeding in the Supreme Court.

[23]         Both parties accept that to be the correct analysis.  As well, both agree that the point in time at which the assessment is to be made is when the action in initiated.

[24]         In this case, plaintiff’s counsel had in hand the reports of two medical practitioners when he commenced the proceeding.  The report of Dr. Paterson, a treating chiropractor, concluded that the plaintiff’s symptoms of neck pain and stiffness, headaches, left shoulder pain and weakness are the result of a Grade III whiplash (moderate/severe) that he sustained in his July 6, 2006 motor vehicle accident. …

[25] There was also a medical-legal opinion from Dr. Condon….

26] Based on those opinions, it was not unreasonable for the plaintiff’s counsel to conclude that the action should be commenced in the Supreme Court.  The evidence indicated the likelihood of a viable claim for loss of future earning capacity as well as a not-insignificant claim for general damages.  Taking that into account, I am not prepared to find that his decision to bring the claim as he did was improper:  he had sufficient reason to proceed as he did when the writ was filed….

32] In the result, there is no basis to find that he deliberately misrepresented his situation to the doctors.  I stand by my conclusion that there was sufficient reason for bringing this proceeding in the Supreme Court, and reject the argument that he should be disentitled to the benefit of that finding because of his own conduct.

On another note, I posted yesterday about the new BC Supreme Court Civil Rules which come into force next year.   I have referenced these and it appears that the law as set out in Rule 57(10) of the current rules remains in place in the New Rules.  The relevant provision is set out in Rule 14-1(10) of the new Civil Rules.  The language there is identical to the current Rule 57(10) so precedents such as this case should remain good law after the new rules take effect.

The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

There are major changes coming to the landscape of Civil Litigation in the BC Supreme Court in the coming year.  Today, the BC Government issued a press release advising of a complete overhaul of the BC Supreme Court rules effective July 1, 2010.
These new civil rules have been the source of much controversy since the proposed changes were first announced.
Whatever side of the debate you were on these new rules appear to now be a reality and all lawyers (or people who will represent themselves in the BC Supreme Court) have just under one year to get up to speed.  In fact, 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.
You can click here to access a copy of the new Civil Rules.
As the new BC Supreme Court Civil Rules were just released today in their final form I will need some time to review them to see what changes they contain with respect to the way ICBC Claims and Personal Injury Claims are prosecuted in the BC Supreme Court.  Over the course of the next year I hope to write extensively about these new rules and the way they will affect personal injury litigation.  In the meantime, according the the BC Government’s Press Release, some of the highlights of these new rules are as follows:

Under the new civil and family rules, the Province will provide up to three days of trial time before litigants are required to pay court fees. Current fees start at $156 for a half day or less. To encourage the use of mediation, court fees for filing or responding to a legal claim will be eliminated for parties that engage in mediation prior to commencing a civil action.

Additional reforms include changes to rules used by B.C.’s civil courts to speed up, simplify and lower the cost of resolving disputes. These include:

· Containing legal processes so that they are proportionate to the value, importance and complexity of the case.

· Allowing parties the option of having a judge set time limits on litigation events.

· Providing a new fast track process that greatly simplifies procedures when the amount in dispute is $100,000 or less or when the case can be tried in three days or less.

· Providing new family rules for minimizing family conflict, promoting co-operation and ensuring that the interests of children are paramount.

$85,000 Non-Pecuniary Damages Awarded in TOS Case

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released today (Cimino v. Kwit) by the BC Supreme Court, New Westminster Registry, awarding damages for injuries and loss as a result of a 2006 BC rear end car crash.
One of the main issues at trial was whether the Plaintiff suffered from Thoracic Outlet Syndrome (TOS) as a result of the crash.  Madam Justice Dillon found that the Plaintiff indeed suffered a traumatic TOS as a result of this crash and in assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) summarized the Plaintiff’s injuries and effects on her life as follows:
[42] I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand…

[46]         In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.

[47]         Non-pecuniary damages are awarded in the amount of $85,000.