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Your Rights and the BC Election – BC Liberals vs. the NDP

Written by admin on . Posted in Uncategorized.

As an injury claims lawyer there are several political-legal issues that I like to keep my eye on. Issues such as legal aid funding, tort reform efforts (code for limiting the rights of victims injured through the careless actions of others) and access to justice are all of interest to me.
With a  Provincial Election just around the corner where do BC’s 2 main political parties stand on these important issues?
Thanks to the efforts of the Trial Lawyers Association of British Columbia (the “TLABC”), we now have some much needed insight.
The Trial Lawyers Association of BC posed the following 14 questions to the NDP, and the BC Liberal Party:
1.  If Elected, will you oppose the BCJRTF proposal for active case management?
2.  If Elected, will you oppose the BCJRTF proposal for curtailing discovery rights?
3.  If elected, will you oppose efforts to introduce no-fault automobile insurance in BC?
4.  If elected, will you support a change in legislation to allow damages for mental anguish and other intangible losses suffered by family members of people who are killed by the careless, reckless or illegal acts of others?
5.  If elected, will you oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice?
6.  If elected, will you support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless?
7.  If elected, will you work to protect and enhance the tort system as a means of deterring unsafe conduct  and holding wrongdoers accountable for the injuries they cause?
8.  If elected, will you support a return to the previous law, which permitted accident victims to recover their gross earnings?
9.  If elected will you support a return to rights being debated in the legislature rather than being changed through regulations and therefor altered by ICBC and the provincial cabinet without open debate?
10.  If elected, will you support a return to payment of interest on non-economic damages?
11.  If elected,  will you support renewal of the legal aid system by providing legal aid to those who need it, and ensuring that those who represent them are adequately compensated for this work?
12.  If elected, will you support reinstating a legal aid system which funds family law legal services at least to pre 2000 levels, such that eligibility requirements are sufficient to meet the needs of the diverse communities of BC, and the funding is sufficient for counsel to attend to these cases in a manner that meets their practice standards while also permitting access to justice for those marginalized in society?
13.  If elected, will you support the revisions to the proposed family rules to address these concerns?
14.  If elected, will you support increasing the funding to provincial correction services to improve the quality of programs within those facilities?
Here are the Parties answers:
BC LIBERALS
1.  The BC Liberal government, in conjunction with the judiciary and senior members of the bar, convened the British Columbia Justice Reform Task Force to identify a wide range of ideas and initiatives to make the justice system more responsive, accessible and cost-effective.  Experience in other jurisdictions, including the United Kingdom and Ontario, demonstrate that case management conferences reduce delays, increase predictability, reduce overall costs and lower court administration costs. The Task Force has learned from the experience of jurisdictions and has incorporated those lessons into the proposed changes. 
2.  The British Columbia Justice Reform Task Force has reviewed the experience of jurisdictions that have limited discovery and concluded there is no evidence that it has created unfairness, and studies have concluded that excessive document production and oral discovery are responsible for much of the delay and expense in civil litigation. The proposed rules strike a balance between the right of discovery and efficiency. Litigants must disclose all documents referred to in their pleadings, all documents they intend to refer to at trial and all documents that could be used to prove or disprove a material fact in the case. It is open to parties to apply to extend this scope of discovery in any case where a wider scope would be warranted.   
3.  A BC Liberal government has no intention of moving to a system of no-fault insurance in British Columbia, or of introducing caps, deductibles or thresholds      
4.  British Columbia’s Family Compensation Act governs the compensation for wrongful death cases involving family members. The BC Liberal government initiated a review of the entire Act, which is examining issues such as compensation for non-economic losses including pain and suffering and bereavement. Victims groups and other advocacy groups have offered valuable input during the consultation phase.   
5.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.     
6.  See above     
7.  The BC Liberals support our civil law system as both a system of compensation and deterrence. We also believe that the court system must be more accessible, accountable and affordable so that justice is available for all British Columbians. That is why the BC Liberal government invested $12 million over three years to reform the civil, family and criminal justice systems.   
8.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    
9.  Changes to the Insurance (Motor Vehicle) Act must be debated in the legislature. Regulatory changes must be approved by Cabinet. The BC Liberals have no plans to alter this long-standing division of responsibilities.    
10.  This issue relates to detailed aspects of the current system of personal injury compensation in British Columbia, which is a mixture of common law and statute law. We think it is important to engage law reform agencies, the legal profession and other affected groups in a careful consideration of these issues. Through its input, the Trial Lawyers Association of British Columbia can help preserve and protect the basic principles of the tort system.    
It is our view that injured plaintiffs should not have their compensation reduced by the effect of delay in payment. Whether the appropriate tool to achieve this objective is by payment of interest, by including the “time value of money” in the calculation of awards for non-pecuniary damages, or by some other means is a question that requires further consideration.      
11.  The BC Liberal government funds one of the most generous legal aid programs in Canada. Legal aid now provides full coverage for family matters involving domestic violence or child protection hearings and expanded legal information and education services. Legal aid has traditionally provided legal representation, paying private lawyers to fight each other in court. That is not what people need to effectively resolve disputes. Access to justice for disadvantaged people requires a continuum of services, including provision of information, support and advice, getting help through alternative dispute resolution and, in some cases, full legal representation.  
The BC Liberal government has implemented a more regionally-based structure with less administration; built up support programs like a 24-hour province-wide legal aid call centre; and provided more economical alternatives to court, like mediation, to focus legal aid dollars where they are needed most – delivering essential services. The new legal aid model reduces administrative costs and puts more money into direct services.    
12.  The BC Liberal government recently increased legal aid funding by $4.6 million. The money will provide family legal services for low-income families in crisis. The BC Liberals will continue to design efficient and responsive programs that make the justice system simpler and more affordable.   
In 2008/09 the BC Liberal government spent $29.9 million on access to justice services beyond the funding we provide to the legal aid program and includes services in addition to mediation and dispute resolution. The BC Liberal government took steps to ensure that legal representation for family disputes is available to eligible clients in emergency situations, including clients in financial need where the Province is seeking custody of a child.    
13.  The new vision of family justice embodied in the proposed rule changes builds on extensive efforts over the last several years to move the family justice system away from an adversarial process. The goal is a process focused on values of family autonomy, co-operation and the best interests of the child.   
The BC Liberal government introduced a notice to mediate process in November 2007 to help facilitate out of court resolution. An expanded Justice Access Centre pilot project was opened in Nanaimo, which offers services and supports with family justice issues. The BC Liberals want to make family disputes easier to resolve and more affordable through new rules of procedure.   
14.  The BC Liberals support programs within the provincial corrections systems that are targeted at reducing recidivism. The BC Liberal government supports programs designed to help offenders confront and deal with issues underlying their behaviors such as substance abuse, violence prevention and respectful relationships. In partnership with Justice Canada, the BC Liberal government supported the enhancement of Aboriginal programming in correctional centres and communities. Programs assisting inmates to upgrade their education and develop life skills are also offered.
The NDP:  
1 – Yes, we will oppose the BCJRTF proposal for active case management.   
2 – Yes, we will oppose the BCJRTF proposal for curtailing discovery rights.   
3 – Yes, we will oppose efforts to introduce no-fault automobile insurance in BC.   
4 – We believe that this issue needs consultation and further study.   
5 – Yes, we will oppose any effort to further restrict the ability of injured patients to recover damages in court for medical malpractice.   
6 – Yes, we will support legislation that requires the court to consider an award of punitive damages where conduct of the defendant is found to be outrageous or unusually reckless.   
7 – Yes, we will work to protect and enhance the tort system as a means of deterring unsafe conduct and holding wrongdoers accountable for the injuries they cause.   
8 – We believe that this issue needs consultation and further study.   
9 – Yes, we will support a return to rights being debated in the legislature rather than being changed through regulations and therefore altered by ICBC and the provincial cabinet without debate.   
10 – We believe that this issue needs consultation and further study.   
11 and 12:   
We are very concerned about the current state of legal aid in BC, particularly with respect to family law. We will work towards reinstating resources for legal aid services, starting with additional funding of $10 million annually for 2010/11 and 2011/12. As resources permit we will do more to fix B.C.’s legal aid system to ensure access for those who need it.   
13 – Yes, we will support revisions to the proposed family rules to address these concerns.  
14 – Yes, we will support increasing the funding to provincial correction services to improve the quality of programs within those facilities. 

Medical Records and ICBC Injury Claims

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

ICBC Injury Claims tend to be record heavy.  It is important to understand the types of records that are typically used in ICBC claims and how these records can be used.
One of the most frequent records reviewed and used by lawyers involved in these cases are clinical records of treating physicians.  These records can be a rich source of information documenting a person’s complaints of injury, course of improvement, medical advice prescribed and other useful information.
When ICBC claims proceed to trial these records are often put to some use by the lawyers involved.  The extent to which each lawyer can use the records varies.  For example, a Plaintiff’s lawyer usually can’t use the records to corroborate the Plaintiff’s evidence at trial as doing so can offend the rule of bolstering a clients credibility by leading evidence of ‘prior consistent statments’.
ICBC Defence lawyers, however, often use prior recorded statements when cross-examining a Plaintiff with respect to injuries sustained in an ICBC claim.  This is one of the most frequent uses made of clinical records in ICBC claims.
It is important for lawyers and clients alike to understand the use that can be made of clinical records at both examinations for discovery and trial in their ICBC Injury Claims.
Reasons for judgment were released today by the BC Court of Appeal shedding light on this topic.   In today’s case the Plaintiff was awarded damages as a result of a 2005 motor vehicle collision.  The defendant appealed claiming that the damages awarded were excessive in the circumstances and that the trial judge made several errors.  In dismissing the appeal the BC Court of Appeal noted that while some errors were made none of these prejudiced the Defendant in the trial.  In doing so the court made some comments on the use to which clinical records can be made at trial.  I reproduce the highlights of this discussion below:

Medical Records Issues

[7]                During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit.  Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing.  Dr. Dwyer testified that he would have noted such complaints if they had been made to him.  Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.  The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms.  He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor.  The trial judge considered the plaintiff’s statements to be hearsay.  He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”

[8]                The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):

I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance.  Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful.  It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment.  These notes are not made for investigative and litigation purposes.  If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

Physicians are not investigators.  They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes.  The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness.  It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

[Emphasis added]

[9]                The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest.  This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors.  The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest.  Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.

[10]            I do not read the trial judge’s reasons as categorically rejecting the admissibility of clinical notes as a general proposition.  Rather he addressed the evidentiary weight of the notes.  I think that he went too far in the sentence underlined above when he stated that clinical notes are not made for investigative and litigation purposes.  That overlooks the fact that all of the medical doctors who testified, apart from Dr. Dwyer, were retained to provide independent medical opinions for the purposes of litigation.  Complaints of symptoms by a plaintiff to doctors must be supported by confirmation of those symptoms by the plaintiff’s testimony in court to provide an evidentiary foundation for the medical opinions; see, for example, Lenoard v. B.C. Hydro & Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.).  Nonetheless, the accuracy of the doctors’ record of complaints is important to their opinions, and to that extent accuracy has obvious litigation implications.

[11]            While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms.  In effect, the defendant is contending for an admission by omission.  In my view, that overstretches the limits of the admissions exception in the circumstances here.  The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony. 

[12]            Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony.  For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident.  The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity.  I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.

 

$115,000 Pain and Suffering Awarded for Mild Traumatic Brain Injury

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized.

In reasons for judgement released yesterday (Williamson v. Suna) by the BC Supreme Court, Victoria Registry, damages of just over $266,000 were awarded for injuries and losses as a result of a 2004 motor vehicle collision.
The Plaintiff was a 38 year old member of the Canadian Armed Forces at the time of the car crash.  The crash was a significant head on collision.  The issue of fault was admitted focusing the trial solely on damages.
The Plaintiff suffered various injuries and symptoms as a result of this crash including a mild traumatic brain injury, headaches, poor sleep, irritability and difficulties with memory.  While the medical evidence did not rule out further possible recovery the testifying physcians stated that the plaintiff would probably suffer from headaches, neck pain and consequences of the mild traumatic brain injury for many years to come.
In awarding $115,000 for the plaintiffs non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) Mr. Justice Goepel summarized the consequences of the injuries on the Plaintiff as follows:

[41]            Prior to the accident, Mr. Williamson was in good health.  He was physically active, and enjoyed activities such as fly fishing, scuba diving, sky diving, and competitive target shooting.  He was a former member of the Canadian national shooting team. 

[42]            After the accident, Mr. Williamson stopped skydiving and scuba diving.  While he still participates in target shooting, the enjoyment that he derives from that activity has decreased.  He explained that the noise from the rifle aggravates his headache, and the kick from the rifle aggravates his neck pain. 

[43]            Before the accident, Mr. Williamson was an active photographer.  He had taken a number of photography courses.  Since the accident, the enjoyment he derives from photography has decreased.  He has difficulty maintaining the static neck positions required to take quality photographs. 

[44]            Mr. Williamson testified that as a result of the accident and his headaches, he now seldom goes out in the evenings.  His irritability has obviously impacted on his family life.  Because of his headaches, he is unable to enjoy his young child as much as he should.

[45]            Mr. Williamson realizes that his injuries, particularly his difficulties with memory and concentration may eventually curtail his military career.  That possibility has caused him considerable anguish and diminished his enjoyment of life.

In addition to non-pecuniary damages, $150,000 was awarded for the Plaintiff’s diminished earning capacity.  Although he missed little time from work in the Canadian Armed Forces and in fact was promoted in the years after the car crash the court found that there was a possibility that the Plaintiff would not be able to continue in his current position or perhaps in the military  altogether as a result of his injuries.  Paragraphs 52-62 are worth reviewing for a discussion demonstrating how damages for future wage loss / diminished earning capacity can be made in an ICBC Injury Claim even where there is no wage loss from the time of the crash to the time of trial.

Examinations for Discovery and Proper Objections in ICBC Injury Claims

Written by admin on . Posted in Civil Procedure, Uncategorized. 60 Comments on Examinations for Discovery and Proper Objections in ICBC Injury Claims

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, discussing examinations for discovery in ICBC Injury Claims and the proper way to frame objections.
In yesterday’s case (Day v. Hume) the Plaintiff allegedly suffered a brain injury as a result of a serious motor vehicle accident.  In the course of being examined for discovery the Plaintiff’s lawyer ‘intervened on several occasions and, in the end, terminated the examination after 50 minutes over (the objection of the ICBC defence lawyer).’
As a result ICBC’s lawyer brought a motion seeking to dismiss the Plaintiff’s lawsuit on the basis that he unreasonably refused to answer questions put to him in discovery.
Madam Justice Smith of the BC Supreme Court declined to grant ICBC this relief and in doing so highlighted some points about the proper course of objecting to questions in examinations for discovery.  I reproduce the highlights of the courts discussion below:

[20]            The principles emerging from the authorities are clear.  An examination for discovery is in the nature of cross-examination and counsel for the party being examined should not interfere except where it is clearly necessary to resolve ambiguity in a question or to prevent injustice.  Intervention should not be in a form that suggests to a witness what a desirable answer might be.  As stated by Garson J. in Forliti v. Woolley, the proper conduct of counsel is to state the objection to the form of the question and the reasons for the objection, but it is not appropriate to make comments, suggestions, or criticism. 

[21]            There was no real disagreement about the legal principles, except that Mr. Maryn submitted that it must be recognized that the practice has changed since Cominco was decided in that it is now necessary to bring on an application in Chambers with respect to disputes about relevance or other matters at examinations for discovery.  Mr. Maryn submitted that it is quite appropriate for counsel to have a discussion about what might make a line of inquiry relevant and he suggested that if counsel for the defendant had been more forthcoming in this case, some of the problems leading to this application might have been avoided. 

[22]            Mr. Maryn also submitted that, in this case, where his client has suffered a brain injury and consequential memory loss, it was appropriate to remind him during the course of the examination for discovery not to make guesses.  Mr. Duplessis’s submission on that point was that it is not appropriate to remind a witness of such instructions and that any of Mr. Maryn’slegitimate concerns could be resolved through appropriate re-examination at the end of the examination for discovery. 

[23]            Looking at the transcript in this case, while possibly Mr. Maryn would have been justified in reminding his witness once not to guess or speculate and his initial comment to that effect was probably appropriate, his statement after question 39… went well beyond a reminder….  

[24]            There was also disagreement as to whether or not counsel for the party under examination for discovery can make statements for the record at the examination for discovery.  Mr. Duplessis took the position that it is not open to counsel to state things for the record.  I disagree.  Although, as I have stated, counsel for the party under examination should not make comments unless they are clearly necessary, it may be appropriate for counsel making an objection to state briefly what the objection is based upon.  First, that may lead to a resolution of the matter through discussion between counsel and avoid this kind of application.  Second, it facilitates a determination of the issue by the court if there is an application to compel an answer.  However, objections by counsel should be concise and to the point….


Motor Vehicle Cases and Expert Reports Addressing Fault

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases, Uncategorized. 48 Comments on Motor Vehicle Cases and Expert Reports Addressing Fault

I have written about the role expert witnesses play in ICBC Injury Claims on several occasions.  These past posts have largely dealt with expert medical witness who typically address the nature and extent of injuries caused by motor vehicle collisions.  What about experts addressing the issue of fault, can they play a role in BC personal injury claims?
The answer is yes but for a variety of reasons such witnesses typically are not involved in claims arising from car crashes.  This is so because in most car crash cases addressing fault expert evidence is not needed because judges and juries are able to use their common sense and collective life experience to determine who is at fault.  However, sometimes more unusual circumstances outside of most people’s typical life experience cause a collision such that expert evidence may be necessary.  Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing this issue.
In yesterday’s case (MacEachern v. Rennie) the Plaintiff was severely injured while “walking or riding her bicycle along the King George Highway…when her head struck the side of a large tractor-trailer“.
The Plaintiff’s lawyer tried to introduce an expert witness to give opinion evidence on the standard of care of professional drivers of tractor-trailers, whether the driver in this case met that standard and lastly with respect to evidence regarding the characteristics of large tractor trailers.
The defence lawyers objected to this witness claiming expert evidence was not necessary to assist the court in making findings of fault.  Mr. Justice Ehrcke of the BC Supreme Court disagreed and permitted this evidence in and in doing so engaged in a useful discussion about the role that expert witnesses play generally in BC cases addressing the issue of fault.  For your convenience I reproduce the highlights of this discussion below:

[10]            In Burbank v. R.T.B., 2007 BCCA 215 our Court of Appeal observed that while expert evidence on the standard of care is not usually required in negligence actions, it may be capable of assisting the trier of fact and admissible as necessary in certain cases, particularly where the subject matter is beyond the common understanding of the judge or jury.

[11]            In the present case, while most adults in British Columbia may have some experience in driving motor vehicles, few have experience in driving large commercial tractor-trailers.  Few would know from their common experience what the handling characteristics of such vehicles are, or what the visibility is from the perspective of a driver in the cab, or what the common driving practices are of professional drivers of such rigs.

[12]            Not only have most persons never had the experience of driving such vehicles, most persons would not even be legally permitted to drive them, since to do so one must first satisfy the requirements to obtain a special class of driver’s licence…

 

[15]            In Tucker (Public Trustee of) v. Asleson (1993), 78 B.C.L.R. (2d) 173 (C.A.), Southin, J.A. specifically addressed the issue of expert evidence in motor vehicle negligence actions and observed that a distinction ought to be made between cases involving motor cars and those involving large transport vehicles.  She wrote at pp.194-195:

To my mind, motor car negligence cases differ significantly from all other actions in which one person alleges that the acts or omissions of another in breach of a duty of care have done him injury.

First, the Legislature has laid down for motorists many rules of the road and many requirements concerning the equipping of vehicles, all of which the motorist is expected to obey and which he expects others to obey.  The only other aspect of ordinary life so governed is that of the movement of vessels upon certain navigable waters.  But I do not say that obedience to these rules relieves the motorist from all other obligations.  See British Columbia Electric Railway v. Farrer, [1955] S.C.R. 757.

Secondly, experts are not called to prove the standard of care which is appropriate. Each judge brings into court his or her own notions of what constitutes driving with reasonable care.  As I said in McLuskie v. Sakai in a passage quoted in the appeal from my judgment (1987), 12 B.C.L.R. (2d) 372 at 378 (C.A.):

The difficulty with these motor car cases and matters of negligence is that whatever we may be saying, what we are doing as judges is, in fact, applying our own knowledge of driving to the facts in the absence of any other evidence.  That is what a judge does every time he says that the defendant should have avoided an obvious obstruction.  I, on the balance of probabilities, am not satisfied that a competent driver coming upon that ice on that bridge on that morning with both hands on the wheel could have done other than Mr. Sakai did.  Therefore, it follows that I do not think he was negligent.

To put it another way, in motor car cases the judge is his or her own expert.  That is not to say that there could not be expert evidence on the proper way, for instance, for the driver of a mammoth transport vehicle to drive.  If, on such an issue, the plaintiff called an expert to say that such a vehicle should not be driven under certain circumstances at more than 40 miles per hour and the defendant called another expert who said the contrary, the learned trial judge could and usually would be obliged to choose one expert over the other.

[16]            Expert evidence on the standard of care has been considered in a number of negligence cases involving the operation of heavy vehicles.  See for example Millott Estate v. Reinhard, [2002] 2 W.W.R. 678 (Alta. Q.B.) and Fuller v. Schaff, 2009 YKSC 10.

[17]            I am satisfied that Mr. Eckert should be qualified as an expert witness and permitted to give opinion evidence in the areas outlined above.  I find that he has the necessary qualifications and that the evidence is necessary in the sense explained by the Supreme Court of Canada in Mohan.  What weight should be attached to his evidence is, of course, a matter that can only be determined at the end of trial.

More on Pain and Suffering Awards for Plaintiff's with Pre-Existing Disabilities

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

Earlier this week I posted about pain and suffering awards in BC for Plaintiff’s with pre-existing severe injuries, today, further reasons for judgment were released by the BC Supreme Court, Vancouver Registry, dealing with this topic. In today’s case (Winkelmans v. Stoffels) the Plaintiff was injured in a rear end car crash in Richmond BC on January 29, 2000.  The Defendants admitted fault for the accident.  
Shortly after the accident the Plaintiff was diagnosed with Multiple Sclerosis.  The Plaintiff did not claim that her MS was caused by the car crash at trial.   The Plaintiff’s MS caused troubling symptoms including “hearing loss, vision problems, fatigue, vertigo, balance difficulties, headaches, problems with memory, speech coordination, weakness, dizziness and stiffness.”. 
The main focus of this trial was whether the Plaintiff had any ongoing symptoms from her car crash by the time of trial or whether her ongoing symptoms were related to other causes such as the MS.  The court found that the Plaintiff indeed was injured in the car crash and continued to suffer from injuries by the time of trial.  In valuing the Plaintiff’s pain and suffering at $60,000 Mr. Justice Curtis made the following comments about her MVA related injuries imposed on her symptoms of MS:

[32]            Having MS has made it difficult for Ms. Winkelmans to recover from her car accident injuries as is recorded in the medical reports.  There are times when she cannot exercise and stretch as she should because of her MS symptoms.  The defendant, through negligence, having injured someone who cannot recover as quickly or as fully as a normal person remains in law on the “thin skull” principle liable to pay compensation for the problems caused by the accident injury, even although they are greater because the plaintiff’s recovery is impaired by her health.  The consequences of the accident injuries to Ms. Winkelmans are, because of her MS, more severe than they would be to a person not burdened with her health issues.  On the other hand, the defendants are not liable to compensate her for what she would have experienced from her previous neck and back problems or for what her MS would have brought on without the intervention of the car accident.

[33]            In summary, I accept that Ms. Winkelmans’ neck and back, including her lumbar spine suffered injury caused by the January 2000 collision and that she suffers a degree of continuing headaches, neck pain and back pain to the present time because of her injuries.  While the extent to which her accident injuries has contributed to her overall condition has not prevented her from working or doing her normal activities, it has introduced continuing pain into her life which will continue in the future – which is particularly difficult for a person who already suffers from MS.  On this basis, I assess Ms. Winkelmans’ claim for general damages for pain and suffering and loss of the amenities of life at $60,000.

Pain and Suffering for Plaintiffs With Pre Existing Injuries

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

How do courts value pain and suffering (non pecuniary damages) when a person with a severe pre-existing injury is injured in a subsequent event?  Reasons for judgment were released today by the BC Supreme Court, Victoria Registry, (Monych v. Beacon Community Services Society) dealing with this issue.
In today’s case the Plaintiff was initially injured in a severe motor vehicle collision in 1992.  As a result of this he was rendered a quadriplegic.  Despite this he was able to lead ‘a relatively active life until November 2006.  He regularly left his home in his manual wheelchair and in his car for exercise, hobbies, entertainment and to visit friends and family.  Prior to the November 2006 accident, Mr. Monych could use a manual wheelchair, drive a car, dress himself, bend at the waist and pick up objects, repair his vehicles and regularly engage in sexual activity with his girlfriend.  Since the November 2006 accident Mr. Monych has been unable to do most of these things. ‘
In 2006, while in the care of the Defendant, the Plaintiff was injured while being transferred from his wheelchair.  The Plaingiff fell during this tranfer.  As a result of this fall the Plaintiff broke both his legs.  Madam Justice Gerow found that the Defendants were responsible for negligently assisting in the transfer of the Plaintiff.  
The Plaintiff’s injuries and their consequences were summarized as follows:
[41]            After reviewing the evidence, I am satisfied that as a result of the fall Mr. Monych suffered fractures to both his legs.  The evidence is that the fractures have not healed and the prognosis is that it is unlikely they will.  No surgical intervention is anticipated or recommended…
[47]            As a result of the leg fractures Mr. Monych’s legs were splinted, causing him a severe restriction of his ability to move around.  While his legs were splinted, he was bedridden and he developed the ischial ulcers.  As stated earlier, Dr. Clinton-Baker’s opinion is that the long hospital stay was a result of the bilateral leg fractures and the ischial ulcers that developed for the first time while in hospital.  I accept Dr. Clinton-Baker’s opinion that the ischial ulcers developed during the long hospital stay that was necessary because of the bilateral leg fractures…
[52]            After considering all of the evidence, I have concluded that but for the accident the injuries causing Mr. Monych’s long hospital stay have resulted in a deterioration of Mr. Monych’s condition to the point where he is restricted to his bed and his electric wheelchair.  If the accident had not occurred Mr. Monych would not have suffered the increased restrictions and limitations on his activities
In valuing the Plaintiff’s losses for general damages Madam Justice Gerow noted a very important principle when determining the value of pain and suffering and loss of enjoyment of life namely that “to rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.”
In awarding $120,000 for the Plaintiff’s general damages the court engaged in the following analysis:

[61]            The evidence from Mr. Monych, the lay witnesses and his caregivers is that Mr. Monych can no longer use a manual wheelchair, do self-assisted transfers to the toilet or shower, do independent transfers, bend at the waist to pick something up, change his own catheter bag, dress himself or drive an automobile.  He has not been able to have a shower or use a toilet since the accident.  As well, he can no longer take part in many of the extracurricular activities he used to, including visiting friends, going to the park with his girlfriend and working on automobiles.  Prior to the accident of November 4, 2006, he was able to do all those things.

[62]            As well, the evidence establishes that Mr. Monych’s personal life has been impacted.  Prior to the accident, he had an intimate relationship with his girlfriend and that has not resumed since his return home from the hospital.  Although Mr. Monych says he would like to resume a sexual relationship, the movement of the bones in his legs deters his girlfriend. 

[63]            Mr. Monych and the defendants have provided me with a number of cases to assist in determining the appropriate award for pain and suffering.  Mr. Monych submits that an award for general damages of $160,000 is appropriate, and that the range is $70,000 to $160,000.  The defendants submit that their authorities support an award for general damages in the range of $30,000.  I have considered the authorities presented by the parties.  As in most cases, there are aspects of the decisions which are helpful, but they also have features which distinguish them from this case. 

[64]            The defendants rely on Ranta v. Vancouver Taxi Ltd. (9 July 1990), Vancouver B882210 (S.C.), as support for the argument that the appropriate amount for general damages is $30,000.  In that case, the plaintiff, who was a quadriplegic, sustained a broken leg due to the negligence of a taxi driver.  In my view, the case has little application to the case at bar.  Harvey J. found that the plaintiff had failed to establish that the defendants’ negligence caused his present and continuing disability.  The injuries that were attributable to the accident were much less severe than the injuries Mr. Monych has suffered and had no long lasting impact.

[65]            I agree with the comments in Boren v. Vancouver Resource Society for the Physically Disabled, 2002 BCSC 1134 at para. 60:

Counsel for the defendant submits the award for non-pecuniary damages should be limited to a consideration of the physical injury sustained October 11.  I disagree.  Rather, the circumstances here raise issues similar to those in Bracey (Public Trustee of) v. Jahnke, [1995] B.C.J. No. 1850 (S.C.), varied on other grounds (1997), 34 B.C.L.R. (3d) 191 (C.A.), in which Oliver J. observed at para. 27 that:

To rob a disabled person of what little she has left is a monstrous injury, for that little she has is, for her, the whole of her life.

[66]            I am satisfied that Mr. Monych has suffered pain and suffering and loss of enjoyment of life as a result of the November 4, 2006 accident.  As stated above, the evidence establishes that as a result of the accident, Mr. Monych suffers ongoing disabilities that have caused a severe restriction to his independence and ability to pursue the activities he was involved in prior to the accident.  He has lost the independence of being able to transfer himself, his ability to exercise and go out independently in his manual wheelchair, his ability to drive vehicles, his sex life and much of his social life.

[67]            Having considered the authorities and the evidence concerning the effect of the injuries on Mr. Monych, and allowing for the probability that his activities would have become more restricted, and his independence more compromised over time due to his ongoing medical conditions, I am of the view that the appropriate award for non pecuniary damages is $120,000.

 

ICBC Now on Twitter

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Over the past few weeks I have posted a couple times about the potential uses that information on social media sites can be put to during personal injury litigation.  The first case involved the production of a hardrive to let the Defendant learn about the Plaintiff’s use of Facebook, the second case involved the contradiction of a Plaintiff’s testimony with photos from her Facebook account.
It is only fitting with these recent cases highlighting the use of social media in personal injury litigation that ICBC joins twitter.  I just stumbled on their account (right after the Canucks sealed their second straight against the Blues!) and as I write this post ICBC only has one ‘tweet’ which discusses BC’s new ‘enhanced’ driver’s licences.  To date ICBC is following no-one and has 13 followers.
I’m not sure who from ICBC is behind this account but hopefully they will designate an approachable person to run it and constructively use the service.  I would like to see ICBC use Twitter to enable them to better their product (auto insurance) and interact beneficially with their customer base.
As recent cases highlight, however, Social Media outlets can be used to spy on people involved in injury litigation and folks need to be careful with respect to the type of information they share on sites such as Facebook and Twitter.  Through twitter I have seen countless people discuss their experiences with ICBC, both good and bad and have read many details shared about people’s ICBC claims and the process involved in dealing with these.  ICBC will undoubtedly use Twitter in a similar fashion to compile and digest this information.
In any event, as one of the few BC Injury Lawyers on Twitter I’d like to welcome ICBC to the service and hope they use this technology productively to better serve British Columbians. 

ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

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Under the old Rule 37 when a formal settlement offer was made by ICBC the Plaintiff could continue to negotiate and make counter offers without jeopardizing the ability to accept ICBC’s formal settlement offer at a later date.  This was so due to rule Rule 37(10) and 37(13) which held that a formal offer to settle did not expire by reason that a counter offer was made.
As readers of this blog know Rule 37 has been repealed and replaced with Rule 37B.  What if ICBC makes a formal settlement offer under Rule 37B that does not contain any language addressing under what circumstances the offer expires.  Would a counter offer act as a rejection of the formal offer such that it can’t be accepted at a later date?
The first case that I’m aware of dealing with this issue was released today by the BC Supreme Court (More Marine Ltd v. The Ship “the Western King”).
In today’s case the Defendant made a formal offer under Rule 37B to settle a lawsuit for “$40,000 inclusive of interest and costs“.  The Plaintiff made several counter offers which were not accepted.  The Plaintiff then purported to accept the defence formal settlement offer.  The parties could not agree on the documents that would be signed to conclude the settlement and the Plaintiff brought a motion to enforce the settlement.
In dismissing the Plaintiff’s motion Madam Justice  Satanove held that in the circumstances of this case the Plaintiff’s counter offer acted as a non-acceptance of the Rule 37B formal offer which then extinguished the formal offer of settlement.
Her summary of the law as applied to this case could be found at paragraphs 5-11 of the judgement which I reproduce below.

[5]                The plaintiffs’ argument would have succeeded under the old Rule 37 which provided in subsections (10) and (13) that an offer to settle did not expire by reason that a counteroffer was made, and an offer to settle that had not been withdrawn could be accepted at any time before trial.  Rule 37(8) provided that a party could withdraw an offer to settle before it was accepted by delivering a written notice of withdrawal in the prescribed form.

[6]                However, Rule 37B contains none of these provisions.  It simply provides a mechanism for the Court to consider an offer to settle when exercising its discretion in relation to costs.  It has been described as “significantly different, and represents a radical departure, from its predecessor Rule 37” (Alan P. Seckel & James C. MacInnis, British Columbia Supreme Court Rules Annotated 2009 (Toronto: Thomson Carswell, 2009) at 372-374).

[7]                In my view, Rule 37B does not change the common law with respect to settlement agreements, which in themselves are just another form of contract.  The old Rule 37 expressly changed the common law in this regard, but the old Rule 37 is repealed.  If the Legislature had intended the provisions of old Rule 37(8), (10), and (13) to continue to apply to the new Rule 37B, it would have retained the wording of those subsections.

[8]                Turning then to the common law of contracts, it is trite to say that a counteroffer constitutes non-acceptance of a previous offer.  The previous offer must be revived in order to be accepted after a counteroffer has ensued.  (United Pacific Capital v. Piché, 2004 BCSC 1524; Cowan v. Boyd (1921), 49 O.L.R. 335 (C.A.)).

[9]                Applying these principles to the chronology of facts in this case, when the plaintiffs issued the counteroffer of January 6, 2009, they were communicating non-acceptance of the Rule 37B offer of November 28, 2008 from the defendants, and this latter offer was no longer extant.

[10]            The only question that remains is whether the November 28, 2008, offer was revived.  The plaintiffs’ purported acceptance in their letter of March 3, 2009, could be construed as a form of offer to the defendants in the same terms as the defendants’ November 28, 2008 offer, but the defendants’ letter of March 5, 2009, once again evidences a counteroffer by its terms.  The subsequent correspondence between the parties reflects further negotiations between them, but no consensus ad idem.

[11]            In conclusion then, based on my interpretation of new Rule 37B, there is no binding separation agreement for me to enforce and the plaintiffs fail in their application.

This case is a reminder that the common law of contract is alive and well regarding settlement offers under Rule 37B and that many of the statutory terms that applied to Rule 37 formal offers no longer are in place.  Formal settlement offers made by ICBC should be carefully scrutinized to see if a counter offer can be made or if doing so will extinguish the formal offer.

Working out the Kinks – More on Rule 37B and BC Injury Cases

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Very important reasons for judgment were released today (AE v. DWJ) by the BC Supreme Court giving more interpretation to Rule 37B.  (Click here to read my previous posts discussing this rule.)
Rule 37B is still relatively new and the courts have not come up with a consistent application of this rule.  Today’s case takes this rule in a potentially new direction that can make access to justice a little less costly and risky for Plaintiff’s advancing injury claims.
In today’s case the Plaintiff was awarded damages of $348,075 after taking into account contributory negligence.  After statutory deductions the judgment in the Plaintiff’s favor was less than the Defendant’s formal offer of settlement.
The Defendant’s lawyer applied to court for an order that “the defendant should receive his costs (After the date that they made their formal settlement offer)”.
In declining to make this order Mr. Justice Goepel stated that under Rule 37B “the court cannot award costs to the defendant (where the defendant beats their formal settlement offer at trial) but is limited to depriving a party of costs or awarding double costs“.  This is the first case I’m aware of interpreting Rule 37B in this fashion.
Below I reproduce the highlights of Mr. Goepel’s reasoning:

Judicial Discretion In Awarding Costs

[48] The discretion a Supreme Court judge has in awarding costs was summarized in Stiles v. British Columbia (Workers’ Compensation Board) (1989), 38 B.C.L.R. (2d) 307 at 310, 39 C.P.C. 2(d) 74 (C.A.):

The power of a Supreme Court judge to award costs stems from s. 3 of the Supreme Court Act which confirms that the judges of the Supreme Court have the inherent powers of a judge of superior court of record.  The power to award costs is governed by the laws in force in England before 1858 and by the enactments, including the Rules of Court, affecting costs made in British Columbia since 1858.  Generally, the decisions on costs, including both whether to award costs, and, if awarded, how to calculate them, are decisions governed by a wide measure of discretion.  See Oasis Hotel Ltd. v. Zurich Ins. Co., 28 B.C.L.R. 230, [1981] 5 W.W.R. 24, 21 C.P.C. 260, [1982] I.L.R. 1-1459, 124 D.L.R. (3d) 455 (C.A.).  The discretion must be exercised judicially, i.e. not arbitrarily or capriciously.  And, as I have said, it must be exercised consistently with the Rules of Court.  But it would be a sorry result if like cases were not decided in like ways with respect to costs.  So, by judicial comity, principles have developed which guide the exercise of the discretion of a judge with respect to costs.  Those principles should be consistently applied: if a judge declines to apply them, without a reason for doing so, he may be considered to have acted arbitrarily or capriciously and not judicially.

[49] In Cridge, Lowry J.A. noted the right of the Lieutenant Governor in Council to restrict the exercise of a Supreme Court judge’s discretion in awarding costs at para. 23:

While, subject to abiding by established principles, a Supreme Court judge has a broad discretion in awarding costs, it remains open to the Lieutenant Governor in Council in promulgating the Rules of Court to restrict the exercise of that discretion as may be appropriate where it is thought that to do so will achieve a desired objective.  The purpose of Rule 37 is to encourage the settlement of litigation through prescribed consequences in costs as in sub-rule (24).  Given that the sub-rule provides for the litigants’ entitlement to costs while affording no discretionary alternative, I consider it clear that there is no room for judicial discretion where sub-rule (24) applies.

[50] A trial judge cannot impose cost sanctions that are not authorized by the Rules.  An example of an ill fated attempt to do so is Kurtakis v. Canadian Northern Shield Insurance Co.(1995), 17 B.C.L.R. (3d) 197, 45 C.P.C. (3d) 294 (C.A.).  In Kurtakis, the trial judge awarded the plaintiff three times special costs.  The Court of Appeal reversed noting at para. 9 that there was “no statutory authority for such an order … and therefore no basis upon which such an order could be made.”

[51] Rule 37B has returned to judges a broad discretion in regards to costs orders arising from an offer to settle.  The discretion is however not unlimited and must be exercised within the parameters set out in the Rule.  Rule 37B(5) dictates the cost options open to a judge when an offer to settle has been made.  A judge can either deprive the party, in whole or in part, of costs to which the party would otherwise be entitled in respect of steps taken in the proceeding after the date of the delivery of the offer to settle or award double costs of some or all of the steps taken in the proceeding after the delivery of the offer to settle.  As noted in Baker, the section is permissive and a judge is not compelled to do either.

[52] What a judge cannot do, however, in my respectful opinion, as a result of an offer to settle, is to order costs to a defendant where the offer to settle was in an amount greater than the judgment.  While that cost option had existed since the time of the 1890 rules, either as an exercise of the court’s discretion or because it was mandated by the terms of the rule, it is not an option available under Rule 37B.  The drafters of Rule 37B(5) have removed that option and presumably determined that the potential deprivation of costs to which a plaintiff would otherwise be awarded is a sufficient incentive for plaintiffs to settle litigation.  As noted in Cridge, the Lieutenant Governor in Council has the right to limit the court’s discretion.  Accordingly, I hold that pursuant to Rule 37B(5) the court cannot award costs to the defendant but is limited to depriving a party of costs or awarding double costs

[53] The defendant does not seek double costs in this case.  It would be a rare case that a plaintiff who recovers damages would face the sanction of double costs. I would expect those sanctions would be limited to situations in which a plaintiff’s case is dismissed or when the plaintiff was awarded more than its offer to settle.

If this precedent holds then Plaintiffs will face fewer financial risks when proceeding to trial.  The costs consequences of going to trial and losing (not beating an ICBC formal offer of settlement) can be prohibitive and today’s case may lead the way to better access to justice in British Columbia for the victims of others negligence.