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Injury Claim Succeeds Despite 4 Year Gap in Treatment by "Germaphobe" Plaintiff

Written by admin on . Posted in ICBC Headache Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries sustained in a vehicle collision.
In the recent case (Moody v. Hejdanek) the Plaintiff was involved in a 2013 collision that the Defendant admitted fault for.  The crash was significant resulting in the Plaintiff’s vehicle being written off and the Defendant’s vehicle sustained over $17,000 in damage.  THe Plaintiff sought medical attention shortly after the crash but by March of 2013 stopped treatment and did not see a doctor again until 2017 for medico-legal purposes.
Despite this gap the Court accepted the Plaintiff suffered a compensable level of lingering injury and assessed non-pecuniary damages at $55,000.  In reaching this quantum Mr. Justice Steeves provided the following reasons:
[51]         The plaintiff testified that immediately after the accident he felt pain in the middle of his back and in his shoulders. This continued into the evening and night. He did not return to work on the day of the accident and he told Dr. Robinson that he was off work for a “couple of days.” He attended at a walk-in clinic on January 15 and January 23, 2013. He was prescribed pain medication but he told Dr. Robinson that he doubted that he took it. He had four massage treatments in March 2013. Dr. Winston stated that there were no references to headaches in the record he saw from the walk-in clinic or massage therapist…

[54]         Nonetheless, the fact that there are no records of medical assessment or treatment of the plaintiff for his injuries from the March 2013 accident until he obtained expert evidence for his trial is significant. He saw Dr. Robinson, an expert in neurology and headaches, in May 2017 and Dr. Stewart, a specialist in physical medicine and rehabilitation medicine, in September 2017. He also saw Dr. Winston in October 2017. Typically, in this type of litigation, there is information, sometimes extensive information and chart entries, from a plaintiff’s family physician. In the subject case, this evidence is absent.

[55]         This situation creates a number of complications for the plaintiff. First, it requires the doctors that he saw in 2017 to make judgments about the medical consequences of the 2013 accident with limited medical information about his history. The primary, or only, source of information available to the doctors for the 2013 to 2017 period is the account of the plaintiff four years after the fact. For example, Dr. Robinson stated in his May 2017 report that “[e]ver since the accident [the plaintiff] has had headache, neck, shoulder and upper back pain.” The only way that this could be known is from what the plaintiff told Dr. Robinson. This is not so much a credibility issue as a problem establishing continuity of medical history.

[56]         I conclude that the absence of contemporaneous medical information about the plaintiff between 2013 and 2017 raises an issue of the weight that is to be given to the plaintiff’s expert evidence.

[57]         A further conclusion that can reasonably be drawn from the absence of medical information between 2013 and 2017 is that there were minimal injuries caused by that accident. Accepting that the plaintiff talked to his golf clients who had medical training, his own evidence is that none of them suggested making an appointment for an examination or treatment. It cannot be the case, as urged by the plaintiff, that conversations on the golf course with people with medical training is the same as seeing those people in their offices and undergoing an examination. Put another way, even on the evidence of the plaintiff, these medical professionals did not think it necessary for him to be examined in their office.

[58]         As partial explanation for this, the plaintiff says he has an aversion to doctors and he is a “germaphobe.” I accept the plaintiff’s evidence that he is uncomfortable seeing doctors but he has seen them for other reasons in the past (for example, an abscessed tooth). He also saw three specialists and underwent a functional evaluation for this litigation without any recorded problems. He apparently did not take pain medication prescribed when he attended at a walk-in clinic in January 2013 but he currently takes Advil for pain. I conclude that the plaintiff would have sought out further medical attention after March 2013 if the injuries he suffered from the 2013 accident had been serious enough, as any sensible person would do.

[59]         According to the defendant, the lack of medical attention at the time of the January 2013 accident means that the plaintiff did not take reasonable steps to mitigate his injuries. There is a logic to that submission but, as above, I conclude that the situation is one of weight to be given to the plaintiff’s expert evidence rather than of mitigation.

[60]         Turning more specifically to the expert evidence, Dr. Robinson has opined that the plaintiff’s history is “… consistent with a diagnosis of chronic posttraumatic headache related to soft tissue injury to the neck (whiplash) sustained in the January 6, 2013 motor vehicle accident.” Similarly, Dr. Stewart reviewed the plaintiff’s history and stated in her report of September 6, 2017 that, “[b]ased on this history it is my opinion that he sustained soft tissue injury to his neck and back in the collision.”

[61]         For his part, Dr. Winston certainly disputes that the plaintiff has any ongoing impairment. However, he does not opine on the specific issue of causation. He notes the initial medical treatment at the walk-in clinic and he apparently had the chart from the physiotherapist available to him. The latter was two months after the accident, in March 2013, and there is no reference on the chart to headaches. He notes that the plaintiff “never sought medical attention again” after March 2013 and he does not believe there was impairment after that. Dr. Winston does not state it expressly, but I take his opinion to be that there was an accident and it did cause some mild soft-tissue injury. However, there was no impairment to speak off after March 2013.

[62]         From these opinions, I conclude that the plaintiff did suffer a soft-tissue injury to his neck from the January 2013 accident, as described by Dr. Robinson. I conclude that headaches are included in this assessment. As above, Dr. Winston’s opinion is broadly consistent with this at least on the initial causation issue (but he is very skeptical about any ongoing impairment). In her opinion, Dr. Stewart includes an injury to the back but in cross-examination, she agreed this was possible but not probable. It is also not the opinion of Dr. Robinson. I do accept the opinion of Dr. Robinson that “[c]hronic insomnia is probably a factor in the persistence and severity of his posttraumatic headaches”…

[73]         Overall, I conclude that non-pecuniary damages in the amount of $55,000 are appropriate in this case.

What Will ICBC's "Minor" Injury Caps Look Like?

Written by admin on . Posted in BC Civil Resolution Tribunal, ICBC Minor Injury Caps, Uncategorized.

As previously discussed, ICBC and the insurance lobby are on the cusp of persuading the BC Government to pass laws capping ‘minor’ injuries and reducing judicial remedies for those caught by the cap.
Assuming the insurance lobby get their way what will ‘minor’ injury caps look like?  The details are incomplete but this is what is known right now.
Who gets stuck with a cap?
If you are injured by the negligence of a distracted, impaired or otherwise careless driver you are having your judicial rights for non-pecuniary damages (pain and suffering) substituted with a government created artificial cap.  In a bizarre twist the Government is proposing to increase the benefits available to the careless driver if they are also injured at the cost of stripping some of the faultless party’s rights.
How much is the minor injury cap?
It is proposed that the cap will be set at $5,500.
How much of a reduction is this from my current legal rights?
A cap already exists across all of Canada (BC included) for non-pecuniary damages in negligence cases.  This cap was set by the Supreme Court of Canada in the late 1970’s at $100,000 and is indexed for inflation.  In today’s dollars non-pecuniary damages can be assessed up to, approximately, $370,000.
What is a “minor” injury?
I put the word “minor” in quotations because the definition will likely capture many claims most people would never consider to be minor.  It is not a medical term, rather, it is a phrase invented by the insurance industry.
The Government has been silent on the exact definition they will use however BC’s Attorney General has stated that the defininon will include “sprains, strains, mild whiplash, cuts, bruises and anxiety and stress“.  These all sound minor but the devil is in the details.  What if injuries become chronic problems?
ICBC hints that chronic injuries can get out of the cap however there’s a catch.  Not only will the injuries need to be chronic but also significantly disabling.  ICBC notes that “if the injury impacts your life for more than 12 months – for example, you’re still not able to go to work or school, have to modify your work hours or duties, or you’re unable to care for yourself – it will no longer be considered minor.”.
So, if ICBC gets their way “minor” will include injuries which can totally disable you for over 11 months.  They will also include permanent injuries so long as you can continue to “go to work or school“.
Who decides if my injury is “minor”?
The Government has been silent on this other than stating  “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.
Is ICBC Foolproof in Designating Injuries as “minor”?
Of course not.  In ICBC’s own words they consider many injuries minor that are, in reality, complex and costly.
What if I want to challenge the designation?
The BC Government has noted that disputes over “the classification of an injury” will be funneled to the BC Civil Resolution Tribunal.
This means that if ICBC (or whatever ‘medical professional’ the government designates as the decision maker) says you have minor injuries you will not be able to have this challenged in court.  Instead you will be forced into a tribunal system.  The tribunal is not presently equipped to handle cases of medical complexity.  They currently only deal with strata fee disputes and very minor small claims.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
The Tribunal also does not have the ability to make binding judgements in Small Claims cases with s. 56.1 of the Civil Resolution Tribunal Act allowing a losing litigant to simply ‘object’ to the result.  The law states that “A party that is given notice of a final decision in relation to a tribunal small claim may make a notice of objection…..If a party makes a notice of objection under this section the final decision is not binding on any party“.
The above are just a few of the shortcomings the BC Government will have to overhaul if they stick to their plan to funnel ‘minor’ injury claims to the Tribunal.
When will the cap come into force?
The BC Government is proposing that people injured by negligent drivers on or after April 1, 2019 will be caught by the cap.
Can I do anything about this?
Yes.  It is not too late to take action and tell the government ‘no to caps’ if you think this is a bad idea.

Government Plans to Strip Rights for Insurance Company Profits; ICBC Targeting Psychological Injury

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

Today the BC Government held a press conference where widespread changes targeting the rights of British Columbians to save ICBC money were announced.
In short the Government is creating an artificial cap on what they call ‘minor’ injuries.  As previously discussed even ICBC admits that the term minor injury catches injuries that are ‘complex and costly’.  The pain and suffering cap will be set at $5,500 and is set to kick in in April 2019.
The Government did not provide a full definition of what they call ‘minor’ but ICBC is already noting that in addition to soft tissue injuries that can disable you for up to a year the cap will also target psychological injuries with the insurer publishing a press release saying mental health issues such as ‘anxiety‘ will be caught by the cap.
The Government stated that “a medical professional” will decide if your injury is “minor“.  It is unclear exactly who this medical professional will be.  If you wish to dispute this designation the government is limiting your rights here as well.  The press release notes that certain ICBC claims will be forced to be adjudicated, not by the courts, but by the BC Civil Resolution Tribunal.  Disputes over “the classification of an injury” will be funneled this way.
As of now this Tribunal does not allow people to be represented by lawyers with s. 20 of the law creating the tribunal stating that the default position for hearings is that “the parties are to represent themselves“.
Lastly, if you wish to not have your rights stripped by caps the Government is asking that the victim of bad drivers, not the bad drivers themselves, pay more stating that “Drivers will have an option to purchase additional coverage for a higher limit in pain and suffering compensation. The limit will be set at $75,000 and will cost approximately $1,300 a year, on top of the cost of their basic and other optional insurance. Charging for this optional coverage means the customers who stand to benefit from increased coverage will pay for it, rather than every B.C. driver.”
You read that right – if you don’t want your rights stripped you need to pay $1,300 more per year, not the distracted and impaired drivers on our roads!
As Yogi Berra said, It Ain’t Over Till It’s Over!  If the above strikes you as unfair please  contact your MLA and tell the government plainly and clearly ‘no to caps’.

ICBC Admits Lobbied "Minor" Injury Caps Will Impact "Complex and Costly" Claims

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

As discussed last month, after years of record profits ICBC is experiencing a bout of financial hardship.  In turn the government is considering stripping your rights if you are injured by a distracted or impaired driver.  Stripping judicial rights to save bad drivers and ICBC money.  A poor trade-off.
Today ICBC published a press release noting they “are working hard alongside government to take the steps necessary to bring about long-term solutions which will put ICBC back on a stable financial footing, one that will create a sustainable auto insurance system for B.C.”
The “work” is persuading government to pass a law placing a cap on what they call ‘minor’ injury claims.
ICBC’s own press release, however, advanced the best argument why caps are a defective idea that target seriously injured victims.
In ICBC’s own words
“older claims – some dating as far back as 2010 – which were initially presented as minor injury claims have since emerged as more complex and costly, large loss claims. Over the past 12 months, we have experienced an unprecedented 80 per cent growth in large loss claims which have an average cost of $450,000 per claim.”
I could not make the argument better myself.   You can be injured by a bad driver and suffer “complex and costly” injury that initially presents as minor.  ICBC knows a “caps” law will catch claims worth hundreds of thousands dollars and instead result in victims receiving pennies on the dollar for long term pain and disability.  They want victims to shoulder the shortfall so bad drivers and the insurance industry can benefit.
If this seems unfair to you contact your MLA and tell the government plainly and clearly ‘no to caps’.

Engineer Report Excluded Based on a "Where's the Science?" Objection

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, excluding the expert opinion of an engineer based on a report lacking adequate scientific foundation.
In the recent case (Young v. ICBC) the Plaintiff alleged being involved in a sideswipe collision caused by an unidentified motorist.  ICBC argued no such collision occurred and instead the Plaintiff likely collided with a concrete barrier.  ICBC attempted to introduce into evidence an engineering report to back up their theory.  The court refused to introduce the report and in doing so provided the following reasons criticizing its scientific foundation:
[6]             The plaintiff’s objection was summed up by her counsel in the phrase “where is the science?”.  Mr. Antifaev submits that the report’s shortcomings go well beyond the question of weight, and go to the very basis upon which expert evidence is admissible.  It involved no scientific analysis, measurements or research, but consists primarily of argument and speculation.  Mr. Sdoutz did not visit the scene of the accident but relies on Google Maps.  He did not measure anything, did not see the car, and cites no accident information, statistics or testing.  The hallmarks of scientific analysis, Mr. Antifaev asserts, are missing.  Moreover, argues Mr. Antifaev, the report is riddled with what must be considered at least confirmation bias, simply feeding back what ICBC requested in an email sent by an adjuster on June 9, 2017. 
…

[18]         I conclude that this evidence does not meet the Mohan criteria and should be excluded on that basis.  But even if I were to conclude otherwise, I would consider it appropriate to exercise my discretion to exclude the report as part the gatekeeping function that I am obliged to exercise vigilantly (see, for instance, JP v British Columbia (Children and Family Development), 2017 BCCA 308 at paras 148-150). 

[19]         As Mr. Harris acknowledged, an expert can only deal with the data and information that is available.  Here, as noted above, there was no data and little information available to Mr. Sdoutz.  As a result, it was impossible to undertake the sort of forensic analysis one would expect in support an opinion of this nature.  I am therefore asked to accept something of a much lower level of reliability, based upon an inadequate scientific foundation.  That, in my view, renders it unsafe to admit the report.  The potential benefit is low and the risk of prejudice high.

[20]         I make no finding of bias on the part of Mr. Sdoutz, whose expert assistance I have found valuable in the past.  I nevertheless agree with Mr. Antifaev that it is concerning that the report appears to have responded not to the initial retainer letter of January 2015, but rather to the inappropriate email of June 2017, and that its conclusions mirror the concerns raised in that email.  This adds to the risk, but my conclusion does not turn on it.

[21]         It follows that Mr. Sdoutz’s report must be excluded. 

Tell the BC Government "No!" To Stripping Rights Of Those Injured By Impaired and Distracted Drivers

Written by admin on . Posted in ICBC Minor Injury Caps, Uncategorized.

The Government is flirting with the idea of stripping your rights if you are injured by a distracted or impaired driver.
If you think this is a bad idea tell the government no.
If you want your voice to be heard here are some quick steps you can take to stand up for your rights.

  • Follow ROADBC, a coalition of British Columbians committed to protecting the rights of anyone injured on our roads
  • Contact your MLA.  Tell them “No to caps” and to keep British Columbians rights intact when injured by careless drivers
  • Join ROADBC’s Facebook Page and share this page with those that share your views

Here’s some background on the current situation.
ICBC is under financial pressure.  That has not always been the case.  In recent years the public insurer was so profitable that the past government scooped nearly $1.3 billion from the crown corporation.
Instead of putting this money back into ICBC or taking less drastic solutions the Government has publicly mulled stripping victim rights to save the insurer money.  When the government strips you of your rights it rarely gives them back.
This is done with talk of “caps”.  In short this means restricting the rights of those injured by careless drivers.  Caps are not new and are the creation of the insurance lobby as product to increase profits.  Caps exist in many jurisdictions across Canada and the US and are proven not to be effective in stabilizing insurance rates.  Insurers, even after successfully persuading governments to limit victim rights, look for ever increasing premiums.
The root cause of ICBC’s financial issues are collisions caused by distracted drivers.  Instead of targeting victims of crashes the focus is better placed on bad drivers.

  • Efforts to make our roads safer by reducing speeding, distracted and impaired driving
  • Higher risk drivers should fairly pay higher premiums reflective of the risk they cause.
  • Embracing safe driving technologies projected to cut down collision rates
  • Returning the $1.3 Billion of past profits taken from ICBC

If you want to say no to the Government stripping your rights to benefit bad drivers contact your MLA and tell them no to caps.

Defense Doctor Opinion Rejected After Finding He Acted As "Advocate"

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Kelowna Registry, rejecting the testimony of a defense hired expert.
In today’s case (Nagra v. Stapleton) the Plaintiff was involved in a 2014 collision that the Defendant admitted responsibility for.  Despite voicing some concerns about the Plaintiff’s credibility the Court accepted his medical evidence that he suffered injuries to his neck and low back as a result of the crash.
In the course of the trial the Defendants called a physician they hired who provided an opinion minimizing the collision’s connection to the injuries.  In rejecting this evidence Mr. Justice Cole found this expert “seemed to be more of an advocate” and provided the following critical comments:

[40]         Dr. Laidlow, called on behalf of the defendant, also confirms that movement of the neck noted during joint examination did seem to be consistent with what was observed spontaneously. Dr. Laidlow also found restrictive range of motion in the plaintiff’s neck but was of the view that his physical symptoms are at the same level or consistent with the plaintiff’s physical symptoms as a result of the 2012 motor vehicle accident.

[41]         I have difficulty with Dr. Laidlow’s evidence as he seemed to be more of an advocate, he was argumentative, and based his report, in part at least, on the fact that because there was no record of neck pain prior to his examination of the plaintiff, that the neck pain had been resolved to the state it was prior to the motor vehicle accident.

[42]         Dr. Laidlow’s opinion is based on the assumption that the neck pain that the plaintiff reported at the end of June 2013, continued on through 2013 and 2014, since the plaintiff was still experiencing neck pain when the June 2014 accident occurred. This assumption was made despite the fact that the plaintiff provided no information to suggest he was experiencing these pain symptoms in 2014 at the time of the accident. Dr. Laidlow admitted that he found no clinical records between 2014 and the date of the accident where the plaintiff reported ongoing neck pain or headaches. Dr. Laidlow reviewed the report of the plaintiff’s family doctor to indicate that there were no reports in his records of pain symptoms similar to those sustained in the accident. Instead, Dr. Laidlow relied on a report by Dr. Novak from June 16, where he indicated that the plaintiff was suffering from chronic neck pain “likely since 2012”.

[43]         I prefer the evidence of Drs. Watson and Waseem, however, the weight to be given to their evidence is diminished because I do not find the plaintiff to be a credible witness.

No – You Can't Call Evidence Suggesting Your Client is a Criminal Without Instructions

Written by admin on . Posted in Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court, New Westminster Registry, with critical comments canvassing the conflict of interest that can arise when a defense lawyer is taking instructions from a Defendant’s insurer.
In the recent case (Kirilenko v. Bowie) the Plaintiff was involved in a collision and sued for damages.  The plaintiff alleged the collision caused a severe and disabling traumatic brain injury.
Mid trial the Defendant’s lawyer brought an application seeking permission for a police officer to testify who would provide evidence of both the Plaintiff’s and Defendant’s involvement in what the court described as “the drug culture“.
The Defendant’s lawyer argued this evidence would be important in helping the Court’s assessment of damages.
In refusing this evidence in the court noted that counsel would not provide “a straight answer” about whether they had instructions from the Defendant directly to call such potentially damaging evidence (as opposed to the Defendant’s insurer).
In refusing to allow the evidence in Mr. Justice Saunders provided the following reasons:

[11]         If the defendants were to tender evidence in this proceeding of the plaintiff having been trafficking in drugs along with the defendant Ms. Bowie, I would, in the first instance, have expected that evidence to come from Ms. Bowie. Ms. Bowie’s name is not on the list of defence witnesses. The natural inference that arises from the defence’s decision not to call Ms. Bowie is an adverse one: that she does not support Cst. Tumbas’ evidence. Had Ms. Bowie testified to that effect, counsel could not call evidence to the contrary, as that would impeach their own client. I do not see how the defence should be entitled to avoid that result, simply through the expediency of not calling Ms. Bowie’s testimony. A party may not do indirectly that which it is prohibited from doing directly.

[12]         This is not just an evidentiary issue. It is an ethical one as well.

[13]         In the eyes of the court, it is Ms. Bowie, and not her insurer, who is defence counsel’s client. There have been references made to insurance in this case – for example, references by the quantum experts who have been called as to ICBC’s involvement in approving certain expenses in regards to Mr. Kirilenko’s rehabilitation. Ms. Bowie’s liability insurer, if it is ICBC, would of course have the exclusive right to conduct the action and instruct counsel under s. 74.1 of the Insurance (Vehicle) Regulation, B.C. Reg. 447/83. However, even if that were the case, I would hesitate to allow defence counsel, on the insurer’s instructions, to tender evidence implicating a defendant insured in criminal conduct without that defendant having been given explicit notice and the opportunity to consult counsel as to her rights, and possibly to be heard on that point.

[14]         To put the matter more simply, in attempting to advance evidence possibly detrimental to the interests of Ms. Bowie, defence counsel would appear to be potentially in a conflict, acting in favour of one client to the detriment of another. I asked counsel directly whether they had instructions from Ms. Bowie that would permit them to tender evidence implicating her in criminal activity. I did not get a straight answer. The existence of any such conflict would have to be ruled out or resolved before this evidence could be admitted, or before Cst. Tumbas could be called.

…

[36]         I find nothing in the circumstances of this case justifies an order that Cst. Tumbas be allowed to testify and he will not be called as a witness.

BC Court of Appeal Upholds Across The Board Mitigation of Damages Reduction

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published this week upholding a trial judge’s 50% reduction of damages in a personal injury lawsuit for failure to mitigate.
In the recent case (Mullens v. Toor) the Plaintiff was injured in a 2012 collision caused by the Defendant.  The Plaintiff suffered physical and psychological injuries and the Court concluded the Plaintiff’s recovery could have been improved had she more diligently followed medical advice.  As a result the Plaintiff’s assessed non-pecuniary damages, loss of earning capacity, loss of pension and deferred profit sharing were reduced by 50% and the future cost of care by 10%.
The Plaintiff appealed arguing the failure to mitigate reduction should only apply to her non-pecuniary damages.  The BC Court of Appeal disagreed.  In upholding the trial result the Court provided the following reasons:

[54]         Failure to mitigate is a positive allegation that should be pleaded and argued at trial:  Hosking v. Mahoney, 2010 BCCA 465 at para. 34.  Ms. Mullens thus submits that the judge erred in deciding issues on a basis that was not specifically pleaded or argued before him and properly should have invited counsel to address the claim: see e.g., Carmel Pharmacy Ltd. v. Tri City Contracting (B.C.) Ltd., 2014 BCSC 337 at para. 2.

[55]         In their response to civil claim the respondents pleaded as follows:

The Plaintiff has failed to follow medical advice with respect to treatment or exercise.

…

The Plaintiff could, by the exercise of due diligence, have reduced the amount of any alleged injury, loss, damage or expense, and the Defendants say that the Plaintiff failed to mitigate her damages.

[56]         The respondents say it is a mischaracterization to say that they did not argue for a reduction across all heads of damages because of a failure to mitigate.  A fair reading of the written submissions and the evidence as presented at trial is that mitigation was a key issue for all of Ms. Mullens’ claims.

[57]         In my view, the respondents’ pleading is clearly not deficient.  In Saadati v. Moorhead, 2017 SCC 28 at paras. 10‑12, Brown J., for the Court, found that a claim for “general damages for pain and suffering, loss of earning capacity past, present and future, loss of opportunity, loss of enjoyment of life, loss of physical heath…” was sufficiently broad to put the opposing party on notice that the claim encompassed mental injury.  Here the pleading is explicit.

[58]         Much of the evidence at trial, both in direct and cross-examination, concerned matters related to the mitigation issue pleaded: the appellant’s failure to return to work, her delay in taking medication, not seeking psychiatric treatment, not having consistent treatment, and the delay in obtaining recommended treatment being a negative factor in her prognosis.  These issues were canvassed by both the expert witnesses (Dr. Zoffman, Dr. Finlayson, Dr. Robertson, Dr. Maloon) and lay witnesses (Mr. Gill, Ms. Macpherson, Ms. Percy and Mr. Towsley).

[59]         The issue of mitigation was both specifically pleaded and extensively explored at trial.  Experts testified to the mental health benefits of returning to work and the benefits of comprehensive psychiatric treatment.  Counsel raised a failure to mitigate in general terms during closing submissions, and made specific reference to the benefits of returning to work, such as improved mental heath.  The specific arguments made with respect to a failure to mitigate past loss of income were logically connected to the other heads of damage claimed.

[60]         In my view, it cannot fairly be said that mitigation was not an issue properly before the court with respect to all of Ms. Mullens’ claims for damages.  I see no merit to this ground of appeal.

BC Court of Appeal – Medico-Legal Reports Are Not Mandatory for Injury Claim to Succeed

Written by admin on . Posted in Uncategorized.

In what is one of the longest running personal injury claims I have come across, reasons for judgement were published today by the BC Court of Appeal finalizing a lawsuit started over 20 years ago.
In today’s case (Jalava v. Webster) the Plaintiff was tackled and badly injured by the Defendant who was “under the mistaken impression that Mr. Jalava had left the café without paying his bill“.
The Plaintiff started a lawsuit in 1996.  He was self represented.  He obtained an order that the Defendant pay him damages to be assessed.  The claim dragged on for years without an assessment taking place and a Chambers Judge eventually dismissed the claim noting that “ it was legally impermissible for the Court to assess damages for personal injuries without a medical-legal report“.
The Plaintiff appealed and BC’s highest court overturned the result noting that a medico-legal report was not a required part of a personal injury prosecution.
The court did, however, in the absence of medical evidence assess a token judgment of $100 noting “this matter has dragged on long enough“.
In commenting on the need of medico-legal reports in personal injury lawsuits the Court noted as follows:

[11]         First, there is no legal rule to the effect that in order to have damages for personal injury assessed, a plaintiff must adduce a medical-legal report into evidence: see Reible v. Hughes [1980] 2 S.C.R. 880. There is no doubt that such reports are very helpful and that without one, it is difficult for a judge to assess damages. In this case, for example, Mr. Jalava told the Court that he had suffered a broken clavicle and a “banged up knee” as a result of the assault, but had no details of the injuries or the financial consequences he had suffered. At this point in time, several years after the assault, it would appear no further information is likely to be brought forward.

[12]         However, since the plaintiff obtained judgment for assault, an intentional tort, it was open to the Court to award a nominal sum. Even if the tort had been negligence, the Court could have given an award of damages that would at least give some recognition of Mr. Jalava’s injuries.

[13]         I also agree with counsel that the chambers judge should not have dismissed Mr. Jalava’s claim on his own motion and without prior notice to Mr. Jalava. The plaintiff was taken by surprise and, being unrepresented, was not able to make a meaningful attempt to forestall such an order. Finally, since Mr. Jalava had already obtained judgments against the defendants, it was simply not possible to dismiss “the claim”. The claims had been reduced to judgments years ago and those judgments could not be reversed or nullified except under Rule 3-8 of the Supreme Court Civil Rules or by this court on appeal.

[14]         In all the circumstances, then, the appeal must be allowed and the chambers judge’s order set aside. Since this matter has dragged on long enough, I would also assess Mr. Jalava’s damages at $100.