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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

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized. 46 Comments on ICBC Now on Twitter

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

Written by admin on . Posted in Civil Procedure, Uncategorized. 86 Comments on ICBC Negotiations – Formal Rule 37B Offers and the Effects of a Counter Offer

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

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on Working out the Kinks – More on Rule 37B and BC Injury Cases

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.

Can ICBC Talk to my Doctors About my Injuries?

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 102 Comments on Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes.  Section 98 of the Regulation reads as follows:

98 (1)  An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1)  The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2)  The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim  in the BC Supreme Court against them for your pain and suffering and other losses?    In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?  

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision.  In the course of her recovery she was treated by a neuropsychologist.  The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist.  In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8]                The Defendant applies for two orders.  The second application for permission to speak to a doctor may be disposed of summarily.  I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action.  The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9]                The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases.  No order is necessary.  As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians.  However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit.  As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

 

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of.  Rule 28 states as follows:

Order for

(1)  Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2)  An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3)  An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4)  The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5)  Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6)  The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7)  The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8)  Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

More on Mitigation of Damages in ICBC Injury Claims

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

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

 Mitigation, in general terms, means taking reasonable steps to reduce one’s damages.  In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC.  The Plaintiff suffered various soft tissue injuries.   In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff.    Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%.  The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:

 

[25]            The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision.  The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26]            Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages.  The questions are as follows:

1.         whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2.         whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3.         whether Mrs. Ponipal unreasonably failed to follow such a program; and

4.         the extent to which Mrs. Ponipal’s damages would have been reduced if she had followed such a program.

[27]            I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries.  I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program.  Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program.  She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano.  However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers.  The second reason she stated was the financial burden imposed in hiring a personal trainer.  However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28]            The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess.  In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent.  In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29]            I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.

BC Personal Injury Claims and the Cost of Litigation

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

Personal Injury Claims can be very expensive to prosecute.  There are many typical expenses involved such as court filing fees, process servers, administrative expenses and the costs associated with gathering relevant information and documents.  However, by and far the greatest expenses associated with prosecuting a Personal Injury Claim are expert witness fees.
Expert witnesses play a role in almost every Personal Injury and ICBC Injury Claim.  Typical expert witnesses include family physicians, treating therapists such as chiropractors and physiotherapists, specialist physicians such as orthopaedic surgeons and physical medicine doctors.  In serious cases where the effects of the injury are permanent often times economists, future cost of care experts and vocational consultants are retained as well.
All of the above professionals are entitled to charge for their involvement as an expert witness in an ICBC Injury Claim and these costs can be significant.  Reasons for judgement were released yesterday (Narvaez v. Zhang) illustrating just how expensive an expert witness can be in a case involving serious injuries.
In yesterdays case the Plaintiff suffered a serious brain injury as a result of a 2004 collision when she was struck as a pedestrian in Richmond, BC.  The case settled before trial for $850,000 plus costs and disbursements.  One of the disbursements incurred by the Plaintiff’s lawyer was associated with expert witness reports by a well respected economist.  
The economist had to prepare ‘several different future income loss assessments and different cost of future care calculations in order to show losses based on (various) plans‘.  In preparing these reports the economist charged about $10,600.
The Defendants refused to pay this account in the settlement claiming it was excessive.  A motion was brought before Registrar Blok of the BC Supreme Court to determine whether this expense was reasonable in the prosecution of the injury claim.  In concluding that this was a reasonable expense Registrar Blok found as follows:

[19]            Here, the question of what the plaintiff had intended as a career path was very much in dispute: in one version of the evidence the plaintiff was going to train as a registered nurse and move to the United States and in another version she would achieve lesser credentials (e.g., licensed practical nurse) and probably would not be able to emigrate to the U.S.  There was evidence going both ways.  The evidence of the plaintiff’s U.S. immigration plan was not fanciful or unreasonably speculative (in which case the cost might be properly disallowed), and there was a reasonable basis to argue that her examination for discovery admission ought not to be accepted at face value.  A registrar considering whether a disbursement was necessarily or properly incurred need only decide that there was a sufficient basis to incur the cost of a disbursement relating to a certain claim; it is not the role of the registrar to decide whether that claim would have succeeded.

[20]            For these reasons I conclude that the evidence supporting the claimed disbursement is admissible and that it was reasonable for plaintiff’s counsel to have asked the economist to provide opinion evidence on U.S.-based scenarios.

[21]            The defendants also argue that the scope of the economist’s reports is excessive in that he was asked to opine on six different scenarios in circumstances where it would have been sufficient to set out just a couple of the more likely scenarios and to then provide a multiplier for the jury to use (for this was to have been a jury trial) to assess damages for any other scenarios the jury concluded would be most likely.  Similarly, the economist was also asked to do six different scenarios for the cost of future care (as distinct from future income loss) and, again, the defendants argue that a multiplier and a table would have been sufficient for the purpose.

[22]            In reply, the plaintiff noted that the economist was asked to do more than provide mere arithmetic, he was asked to compile statistical information on earnings of registered nurses both in Canada and the U.S., the earnings of licensed practical nurse and residential care aides, the likely amount of her residual earnings (that is, her likely earnings given her cognitive impairment) and to prepare projections of lost earnings for those positions using two different start years.  As for the cost of future care, had the situation been straightforward (e.g., based on predictable costs that would be incurred in each and every year) it might have been appropriate to have a multiplier with a table or two, but in this case some of the care items were intermittent or temporary, and some were based on possibilities that she would require more extensive care later in life.  It was thus submitted that it would not be reasonable to expect a jury to use a multiplier or table in a fashion that would properly address these cost variations.

[23]            I have reviewed the reports and accounts of the economist in some detail and conclude that in the circumstances of this particular case it was proper for counsel to ask the economist to set out his opinion on future income loss and future care costs using the different scenarios he did.  There were several employment possibilities for the plaintiff and she might either have ended up in the United States or stayed in Canada, and there was the question of the income that she was now capable of earning in her impaired state.  Similarly, for the cost of future care I conclude that it was reasonable for counsel to set out relatively understandable numbers for presentation to a jury in light of the fact that a number of the future care items were uncertain, intermittent or temporary.  I do not think it inappropriate to conclude that a jury might have difficulty using a mere multiplier or table in light of these sorts of complications.

[24]            In the result, I allow in full the amounts claimed for the costs of the economist’s reports.