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BC Court of Appeal – The Phrase Crumbling Skull is "Rarely Helpful"

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Reasons were released today by the BC Court of Appeal criticizing  the phrase ‘crumbling skull’ and spelling out the analysis a Court must take when dealing with non tort related causes to a Plaintiff’s position.
In the recent case (Gordon v. Ahn) the Plaintiff was injured in a 2009 collision and was awarded $50,000 at trial.  In reaching the award the trial judge noted that the plaintiff was a ‘crumbling skull’ and further that she failed to mitigate her damages and reduced the damage assessment by some unspecified amount.  The BC Court of Appeal ordered a new trial noting the trial judge did not properly address the evidence to justify any reductions.  In discussing what is needed of a Court when deciding what position a plaintiff would be in but for the tort the following reasons were provided:

[33]        The use of the phrase “crumbling skull” to describe a plaintiff’s condition is, in any event, rarely helpful. As Major J. explained in Athey, there are no special rules or analyses that apply to claims made by plaintiffs who, before becoming victims of a tort, are affected by conditions that may deteriorate in the future. Damages are always to be assessed by reference to the situation that the plaintiff would be in but for the wrongdoing. Describing a plaintiff as coming within the “crumbling skull doctrine” does not eliminate the need for a complete analysis of the pain and suffering caused by the accident.

[34]        The judge found that there was “an inter-relationship between the pain that the plaintiff experienced from her physical injuries and her emotional or psychological problems”. He also found that her psychological problems “worsened because of the accident”. Even in cases where a plaintiff is suffering from serious chronic depression, an aggravation of the symptoms attributable to a tort is compensable: Sangha v. Chen, 2013 BCCA 267. In the present case, where the plaintiff’s symptoms were fairly minor before the accident, but developed into major depression as a result of the accident, it is clear that damages ought to have been awarded.

[35]        It is not apparent, from the judge’s reasons, whether he awarded any damages in respect of the depression brought on by the accident. Beyond referring to the “crumbling skull doctrine”, he did not undertake any analysis of the issue of damages in relation to Ms. Gordon’s emotional and psychological deterioration.

[36]        A proper analysis of the issue would have required the judge to consider the degree to which Ms. Gordon’s psychological and emotional health was damaged by the accident. Such an analysis would have required a detailed consideration of her pre-accident and post-accident mental health, as well as an assessment of the likelihood that a deterioration would have occurred even in the absence of an accident (see Laidlaw v. Couturier, 2010 BCCA 59). The judge failed, in this case, to undertake such an analysis.

"Partisan" Experts Criticized and Rejected by BC Supreme Court

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Adding to this site’s archives of judicial criticism of expert evidence, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting the evidence of two experts the court found gave evidence in a ‘partisan’ fashion.
In today’s case (Thompson v. Helgeson) the Plaintiff was involved in a 2012 collision that the Defendant admitted liability for.  In the course of the lawsuit the Plaintiff was assessed by several experts including two psychiatrists, one retained by the Plaintiff and the other by the Defendant.  The Court gave “no weight to either” finding they were partisan in their evidence.  In rejecting these opinions Mr. Justice Sewell provided the following reasons:

[72]         There is a disagreement between Dr. Ancill and Dr. Levin over whether Ms. Thompson suffers from any recognized psychiatric illness related to the Accident.

[73]         Dr. Ancill and Dr. Levin agree that Ms. Thompson does not suffer from post-traumatic stress disorder. However, they disagree on whether she suffers from any recognized psychiatric disorders.

[74]         Dr. Ancill diagnosed Ms. Thompson with the following conditions:

1.  Post-Concussion Syndrome with Mild Traumatic Brain Injury;

2.  Mild Neurocognitive Disorder arising from a Traumatic Brian Injury;

3.  Adjustment Disorder with anxiety-chronic type;

4.  Major Depressive Disorder-moderate-severe, chronic; and

5.  Somatic Symptom Disorder.

[75]         Dr. Levin’s opinion is that Ms. Thompson does not meet the criteria for any recognized psychiatric disorder.

[76]         I have reservations about the evidence of both Dr. Ancill and Dr. Levin. I found both of them to be somewhat partisan in their opinions.

[77]         I do not accept that Ms. Thompson is suffering from five psychiatric disorders as opined by Dr. Ancill. I have already concluded that she does not have post-concussion syndrome or a brain injury. Having reviewed Dr. Ancill’s report, I am unable to conclude that he took a balanced and unpartisan approach to assessing Ms. Thompson’s mental state.

[78]         On the other hand, Dr. Levin rejected the notion that Ms. Thompson suffered from any psychiatric conditions arising from the Accident and attributed any complaints she had to her pre-existing depression.

[79]         As with Dr. Ancill, I considered the tone and content of Dr. Levin’s report to be very adversarial. In his report, he repeatedly referred to what he described as inconsistencies in Ms. Thompson’s statements to him during her interview. However, on cross-examination, he was forced to agree that these inconsistencies were clarified by Ms. Thompson later in her interview. In addition, he provided no explanation as to why Ms. Thompson has developed the headaches that are her chief complaint and in fact, paid scant attention to their existence.

[80]         I also found Dr. Levin to be argumentative and at times non-responsive in the answers he gave on cross-examination. One example of this was his answers with respect to whether Ms. Thompson met the criteria for Somatic Symptom Disorder with Pain. In his report he said the following:

48.       I defer an opinion about Ms. Thompson’s physical injuries sustained in the subject MVA to specialists in internal medicine and orthopaedic surgery. However, from a psychiatric perspective, Ms. Thompson did not present with a catastrophic perception of her injuries, pervasive preoccupation with pain or excessive time consuming activities trying to manage her pain to the extent that she would be diagnosed with chronic pain disorder as a psychiatric condition currently described in DSM 5 under the rubric of somatic symptom and related disorders.

[81]         When counsel pointed out that the DSM 5 criteria for Somatic Symptom Disorder stated that a catastrophic perception of injuries was only possibly present, Dr. Levin gave unresponsive answers and failed to acknowledge the obvious meaning of the passage in the DSM 5 that he was being asked about.

[82]         Finally, Dr. Levin was the only witness of the many expert and lay witnesses who opined that “Ms. Thompson appeared as an optimistic, future-oriented, and at times cheerful woman who reported her unimpaired ability to enjoy herself and make other people laugh.” Based on Ms. Thompson’s evidence at trial, my own observations of her and the evidence of every other witness who commented on her post-Accident condition, I simply cannot accept that she presented herself to Dr. Levin in that manner.

[83]         I therefore conclude that Dr. Levin lacked the required impartiality and objectivity to provide reliable evidence about Ms. Thompson’s post-Accident condition.

[84]         With regard to the reports of both Dr. Ancill and Dr. Levin, I also do not find it particularly helpful to know whether Ms. Thompson meets the criteria for specific psychiatric disorders set out in the DSM 5. In assessing damages, the question is whether Ms. Thompson’s symptoms are genuine, whether there is a substantial connection between those symptoms and the defendant’s negligence, and the effect that those symptoms have had on the plaintiff.

[85]         After reviewing both opinions, I give no weight to either. It seemed to me that Dr. Ancill was going out of his way to identify every possible mental illness suggested by Ms. Thompson’s reported symptoms, while Dr. Levin seemed anxious to convey the impression that Ms. Thompson was in no distress whatsoever.

$65,000 Non-Pecuniary Assessment for Partly Disabling Mechanical Neck and Back Pain

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Update September 28, 2018 – Today the BC Court of Appeal published reasons re-assessing the non-pecuniary award in the below case at $85,000.
________________________________
Reasons for judgement were published today by the BC Supreme Court, New Westminster registry, assessing damages for partly disabling injuries sustained in a collision.
In today’s case (Riley v. Ritsco) the Plaintiff was involved in a 2011 collision.  The Defendant was found fully liable.  Following the collision the plaintiff suffered from chronic neck and back pain with associated symptoms and a poor prognosis for full recovery.  In assessing non-pecuniary damages at $65,000 Mr. Justice Bowden provided the following reasons:

[42]         In summary, Dr. Adrian opined as follows:

1.     The mechanical neck, mid and lower back pain experienced by the plaintiff are consistent with suffering an injury to the spinal tissue and are causally related to the motor vehicle accident.

2.     The headaches experienced by the plaintiff are triggered by neck pain and related to his neck injury.

3.     The plaintiff’s left shoulder pain symptoms are causally related to the accident.

4.     The plaintiff’s left knee pain symptoms are causally related to the accident.

5.     While the plaintiff experiences psychological and cognitive symptoms, Dr. Adrian deferred to specialists in psychiatry to comment on the nature of those symptoms.

6.     As several years have passed since the accident, the prognosis for further recovery from the injuries suffered in the accident into the future is poor.

7.     The plaintiff will probably continue to experience difficulty performing activities that place physical forces onto his neck, back, left shoulder and left knee. He will probably continue to experience difficulty performing employment, recreational and household activities involving prolonged sitting, standing or walking, awkward spinal positioning, heavy or repetitive lifting, stooping, repetitive neck motion, repetitive reaching, climbing or jarring activities.

8.     The plaintiff’s physical limitations are unlikely to improve into the future and he is permanently partially disabled due to injuries suffered in the accident.

[43]         The plaintiff has undergone a variety of treatments for his injuries following the accident including 134 physiotherapy treatments, 64 massages, acupuncture and chiropractic treatments. This has given him some relief but the pain symptoms referred to by Dr. Adrian continue.

…

[57]         I accept Dr. Adrian’s description of the injuries suffered by the plaintiff as a result of the collision. It appears that the plaintiff has endured pain of different levels and at different times during the years following the accident. He was totally disabled from work for about 14 months and he will likely continue to experience some pain in the areas of his body where he was injured for the remainder of his life. He is described by Dr. Adrian as suffering a permanent partial disability as a result of the accident. His injuries have negatively affected his ability to work as a millwright as well as a number of his recreational activities…

[62]         While Dr. Adrian opines that the plaintiff would find certain functions at work to be difficult he did not say that the plaintiff was unemployable. There is also insufficient evidence, and none from an expert, to establish that the plaintiff suffered psychological damage from the accident. Indeed, Dr. Adrian defers to specialists such as a psychiatrist regarding the nature of the plaintiff’s psychological state.

[63]         Unlike Mr. Mandra, the plaintiff in the case at bar did not present evidence from an occupational therapist or a psychiatrist.

[64]         Considering the factors referred to in Stapley v. Hejslet and the particular circumstances of the plaintiff I have concluded that an award of $65,000 is appropriate for non-pecuniary damages.

212,000 Reasons not to Drive Drunk

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Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, illustrating the potentially steep financial consequences of impaired driving.
In today’s case (Hamman v. ICBC) the Plaintiff was involved in a rear end crash.  He was the offending motorist.  He was insured by ICBC but was denied coverage for the crash due to allegations of impaired driving.  An occupant in the faultless vehicle was injured and ICBC ultimately settled the claim for $212,000.
ICBC then sought repayment from the Plaintiff.  The Plaintiff sued ICBC arguing they should not have denied coverage.  Mr. Justice Kent disagreed and ordered the plaintiff pay back ICBC the full amount, plus interest and court costs.  In upholding the breach of insurance the Court provided the following reasons:

[64]         I have no hesitation in concluding that Mr. Hamman was severely impaired by alcohol at the time of the accident.  His explanation of his activities that day and the amount of alcohol he had consumed is confused and unconvincing.  At the scene of the accident he appeared “out of it”.  He smelled of alcohol and he displayed significant comprehension difficulties.  He failed the roadside alcohol screening test.

[65]         It was a relatively clear night and the road surface was dry.  The highway was relatively straight.  The construction zone was illuminated by lights and a flashing arrow merger sign.  There was nothing to diminish the visibility of either the construction zone or the numerous vehicles that had come to a stop before it without incident.

[66]         At the police station he was noted to have slurred speech, flushed complexion, and blood-shot eyes.  He was falling asleep both in the police car and eventually at the police station itself.

[67]         And then, of course, there are the blood-alcohol readings obtained through the Data Master breath testing.  Those readings, .17% and .18% reflect substantial intoxication by alcohol.  They also put the lie to Mr. Hamman’s claim that he had only consumed a couple drinks on the evening in question.  That level of intoxication also explains Mr. Hamman’s difficulties with visual perception (depth and distance) and inability to first notice and then react to the otherwise clearly visible vehicles stopped on the highway ahead of him at the construction zone.

[68]         The evidence is overwhelming, and I have no hesitation in finding as a fact, that at the time of the accident Mr. Hamman was driving his vehicle under the influence of alcohol to such an extent that he was incapable of its proper control.  In doing so he breached the terms and conditions of his insurance policies and his liability coverage for the accident was rightly denied by ICBC.

[69]         Mr. Hamman’s action is dismissed.  ICBC’s counterclaim is allowed and damages are awarded to ICBC against Mr. Hamman in the amount of $212,000 together with interest pursuant to the Court Order Interest Act, R.S.B.C. 1996, c. 79.

Court Finds Careless Driving Admission Not Binding in Subsequent Injury Lawsuit

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, finding a motorist faultless for a collision even though that same motorist entered a guilty plea to a charge of driving a vehicle without due care and attention.  While this is not the first noted circumstance of this occurring the Court provided helpful reasons setting out the circumstances where the prior admission will not be an abuse of process to re-litigate.
In today’s case (Chand v. Martin) the Plaintiff was operating a vehicle struck by a train.  He was injured and a passenger in his vehicle was killed.  The Plaintiff was charged with “driving a vehicle without due care and attention” and plead guilty (meaning an admission that he did so beyond a reasonable doubt).
The Plaintiff then sued a host of parties including the train conductor alleging they were at fault for the incident.  The Court found that the train conductor was indeed negligent for the incident noting that he proceeded into the train crossing when the signal lights were not working and this created an unreasonable risk of harm.
The Defendants argued that the Plaintiff was also partly at fault and cannot escape this given the previous admission of careless driving.  Madam Justice Russell disagreed and in allowing the issue to be re-litigated despite the previous guilty plea noted as follows:

[86]        The key decision regarding the effect of a guilty plea in a subsequent proceeding involving the same facts is Toronto (City) v. CUPE Local 79, 2003 SCC 63. In that case, the Supreme Court of Canada was considering whether the grievance of a dismissal following a conviction for sexual assault amounted to an abuse of process. The Court provided the following comments at paras. 51-53:

[51] Rather than focus on the motive or status of the parties, the doctrine of abuse of process concentrates on the integrity of the adjudicative process. Three preliminary observations are useful in that respect. First, there can be no assumption that relitigation will yield a more accurate result than the original proceeding. Second, if the same result is reached in the subsequent proceeding, the relitigation will prove to have been a waste of judicial resources as well as an unnecessary expense for the parties and possibly an additional hardship for some witnesses. Finally, if the result in the subsequent proceeding is different from the conclusion reached in the first on the very same issue, the inconsistency, in and of itself, will undermine the credibility of the entire judicial process, thereby diminishing its authority, its credibility and its aim of finality.

[52] In contrast, proper review by way of appeal increases confidence in the ultimate result and affirms both the authority of the process as well as the finality of the result. It is therefore apparent that from the system’s point of view, relitigation carries serious detrimental effects and should be avoided unless the circumstances dictate that relitigation is in fact necessary to enhance the credibility and the effectiveness of the adjudicative process as a whole. There may be instances where relitigation will enhance, rather than impeach, the integrity of the judicial system, for example: (1) when the first proceeding is tainted by fraud or dishonesty; (2) when fresh, new evidence, previously unavailable, conclusively impeaches the original results; or (3) when fairness dictates that the original result should not be binding in the new context. This was stated unequivocally by this Court in Danyluk, supra, at para. 80.

[53] The discretionary factors that apply to prevent the doctrine of issue estoppel from operating in an unjust or unfair way are equally available to prevent the doctrine of abuse of process from achieving a similar undesirable result. There are many circumstances in which the bar against relitigation, either through the doctrine of res judicata or that of abuse of process, would create unfairness. If, for instance, the stakes in the original proceeding were too minor to generate a full and robust response, while the subsequent stakes were considerable, fairness would dictate that the administration of justice would be better served by permitting the second proceeding to go forward than by insisting that finality should prevail. An inadequate incentive to defend, the discovery of new evidence in appropriate circumstances, or a tainted original process may all overcome the interest in maintaining the finality of the original decision (Danyluk, supra, at para. 51; Franco, supra, at para. 55).

[Emphasis added]

[87]        I find that the case at bar fits within the exception emphasized above in CUPE Local 79 at para. 53. Mr. Chand had no memory of the collision, and so he could not offer a full and robust defence. In addition, the fine was quite minor, with the stakes of this subsequent proceeding being much higher. In those circumstances, it is not surprising that Mr. Chand chose to enter a guilty plea.

[88]        Consequently, I find that in these circumstances, Mr. Chand’s guilty plea does not constitute proof in these proceedings that he was driving without due care or attention on the night in question. In keeping with the independent eyewitness testimony of Mr. Harkness and Mr. Angus, I find that Mr. Chand was not speeding or driving erratically.

Damages for Surrogacy Fees Awarded in BC Injury Claim

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In what I believe is the first case of its kind in British Columbia, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding damages for surrogacy fees for future potential pregnancies after a collision compromised the Plaintiff’s ability to safely carry a child.
In today’s case (Wilhelmson v. Dumma) the Plaintiff was “the sole survivor of a horrendous, high-speed, head-on collision that killed three other people”.  The collision caused profound injuries leading to permanent disability.  Included in the aftermath of this collision was an inability of the Plaintiff to safely carry a child.  In awarding damages for surrogacy fees should the Plaintiff wish to have a child by such means Madam Justice Sharma provided the following reasons:

[375]     Based on the evidence in this case, a specific award for surrogacy fees is more appropriate than assuming her loss is adequately compensated for within the award for non-pecuniary damages. While the lost ability to carry a child to term certainly has caused Ms. Wilhelmson pain and suffering, deserving of recognition within the non-pecuniary damages, the fact that she is unable to carry a child leads to a distinct future cost to allow her to have a biological child — the cost of hiring a surrogate. I find this cost is medically necessary and reasonable. Its necessity arose directly from the accident; therefore the cost must be borne by the defendant.

[376]     I find some support for my view in Sadlowski v. Yeung, 2008 BCSC 456. In that case the plaintiff underwent a hysterectomy and she alleged the defendant, a gynaecologist, failed to adequately inform her of her medical condition and treatment options. The operation left the plaintiff infertile, and she alleges had she been adequately informed she would not have proceeded with the hysterectomy.

[377]     The court awarded her $90,000 for the loss of fertility as a separate award from the $100,000 damages awarded for pain and suffering. In doing so, the court relied on Semeniuk v. Cox, [2000] A.J. No. 51 at 78 where the judge noted the “invidious task” facing a judge trying to quantify the loss of fertility. In Semeniuk Acton J. also stated (para. 35):

I am of the view on this point, however, that infertility is a type of loss not properly lumped together with the usual non-pecuniary categories of pain, suffering and loss of amenities. Those categories cover losses which, in my view, at of a different nature of quality than the loss of the ability to bear children or to achieve the family one has planned…..I prefer … to assess quantum for infertility discretely, by reference to the circumstances of each case.

[378]     The court ultimately did not award a separate amount for surrogacy fees, but that was on the basis that the evidence of her desire to pursue surrogacy was “highly speculative”. The evidence present in this case was not “highly speculative”, and I am persuaded that the claim for surrogacy fees is medically justified and reasonable.

[379]     Dr. Yuzpe testified about the approximate cost involved in hiring a surrogate in the United States. These estimates were not successfully challenged by the defence. I am satisfied that Dr. Yuzpe’s evidence regarding costs is reliable. His report cited an overall range of between $50,000 and $100,000 per pregnancy by surrogate. I find that an award at the low end of this range is appropriate and award $100,000 for surrogacy fees for two pregnancies.

Proven Cases of ICBC Fraud Almost Non Existent

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Insurance Companies often talk about the high cost of fraud and ever rising claim rates.  These discussions are often abstract or accompanied with large numbers.  When you look behind the data there is often little to substantiate the numbers.
This pattern seems to be the case with ICBC’s claims that fraud costs policy holders $600 million per year.  The reality, however, is there is no data to substantiate this.
Recently ICBC revealed, pursuant to an information request, the number of successful convictions against fraudsters.  The numbers are negligible.
Richard McCandless, a self described “retired senior BC government public servant” made an information request for the number of fraud charges laid and the number of resulting convictions.  ICBC replied and the data revealed that there are very few successful prosecutions and the trend, if anything, is moving downward.
McCandless Screenshot
Fraud is real and insurers and ratepayers have to pay the price.  Insurers overstating fraud, however, is equally real and the public is entitled to be aware that proven fraudulent claims make up a small percentage of what insurers would have us believe.
Mr. McCandless’ full article can be found here.

Video Surveillance Helps Deflate Personal Injury Claim

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In the world of personal injury lawsuits, video surveillance usually amounts to hours of filming benign activity entirely consistent with a Plaintiff’s known injuries.  Occasionally, however, video helps capture images inconsistent with a Plaintiff’s presentation.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with such an outcome.
In today’s case (Ma v. Haniak) the Plaintiff was involved in three collisions and sued for damages.  Fault was admitted by the Defendant motorists.  The Plaintiff was self-represented and sought approximately $1.4 million in damages.  The Court largely rejected the Plaintiff’s claims and awarded a small fraction of her sought damages.  In reaching the conclusion that the Plaintiff’s claim was exaggerated Mr. Justice Armstrong noted as follows when reviewing video surveillance evidence:

[114]     The defendants tendered video surveillance of Ms. Ma from 2007, 2009 and 2011.

[115]     On September 21, 2007, Ms. Ma was observed working with her brother in their newspaper delivery business. Mr. Maung is seen loading the car with the newspapers. She appears to move without any restrictions in her range of movement and appears to be flexible and capable of moving bundles of newspapers. Although she shows no overt signs of pain, it is not possible to ascertain her actual condition from the video.

[116]     Ms. Ma was able to crouch down, reach in and manually rearrange paper in her car and move several paper bundles.

[117]     Mr. Maung appears physically capable of moving bundles of newspapers to the vehicle from nearby pallets.

[118]     Between October 29, 2009 and November 2, 2009, Ms. Ma was observed and filmed by a private investigator. She was seen driving, entering and exiting her Mazda MPV without any apparent difficulty. Her movements seemed unrestricted and flexible; she carried a cane but did not use the cane to stabilize her walking or support herself.

[119]     In August 2011, more than one-and-a-half years after MVA #3, Ms. Ma was observed and filmed by a private investigator; the recording lasts between 30 and 40 minutes of film.

[120]     At Ms. Ma’s examination for discovery, she testified that she suffered pain when carrying things. She said she avoided carrying items and used the basket on her walker when necessary.

[121]     Nevertheless, on August 9, 2011 Ms. Ma was attending an appointment with Dr. Magrega and used her walker when entering and leaving the office. Later that day she is seen walking and carrying items at a McDonald’s restaurant without any apparent limitation or need for assistance. On that day Ms. Ma is seen exiting her vehicle and walking towards a restaurant with a normal gait, moving at a normal speed and without the benefit of a walker or wheelchair. She collects food from a counter and carries a tray with a drink on top and a separate bag to a table inside the restaurant; she then walks outside to her car carrying a drink and a bag for a person in the vehicle. Ms. Ma’s comportment in this video is significantly different than her comportment at trial. At trial, she used a walker to move in the room and to the witness box. She did not demonstrate the marked flexibility and physical movement that appears on the video.

[122]     What is observed on the video demonstrates significantly less restricted movement than she described in her testimony.

[123]     She testified that when using the sliding doors to enter her van, she suffered severe pain and relied on family members and a cane to open and close the doors when possible. On the date of the video, she is seen freely opening and closing the doors, leaning in and delivering food to others who had not come into the restaurant. The video of the plaintiff was dramatically different from her self-described limitations.

[124]     She testified that if she bumped into a person while being out and about, she would experience excruciating pain; she is seen to be bumped while in the restaurant lineup and shows no evidence of excruciating pain.

[125]     On the video, she was clearly functioning without evidence of pain or limitation in her movement. She walked briskly and without the use of a cane or walker. Her facial expression showed no evidence of pain or discomfort.

[126]     I except that surreptitious video presentations of injured plaintiffs can be misleading; in the circumstances of this case I am satisfied that Ms. Ma’s physical movements on August 9, 2011 were entirely incongruous with her testimony concerning her physical ability and dexterity at the time and since.

[127]     Her only explanation for the apparent differences between her testimony and the video presentation was that she was “tricked” at the discovery. She also said that the limitations in her ability to move or walk distances without a walker do not become apparent until she has been active for approximately ten minutes.

…

[315]     I agree with the defence that the plaintiff’s claim concerning the level of pain she has experienced after the accidents is wholly inconsistent with her appearance at trial and on the surveillance videos. Although the August 2011 video was taken almost five years before trial, the plaintiff’s examination for discovery evidence, which was given within two weeks of the video, is telling. It contradicted the plaintiff’s appearance in the video surveillance films. Her testimony and use of a walker at trial was consistent with her evidence at the examination for discovery but equally inconsistent with observations of her in the various surveillance videos. From these inconsistencies, I make an adverse finding about Ms. Ma’s credibility.

Judge Compels Plaintiff to Sign "Consent Form" In Court Ordered Doctor Exam

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The law is split on whether a litigant can be forced to sign a consent form when attending a court ordered medico-legal appointment.  Today reasons for judgement were published providing further judicial commentary on the topic finding such an order is permissible.
In today’s case (Wee v. Fowler) the Plaintiff was involved in a vehicle collision and sued for damages.  In the course of the lawsuit an order was made that the Plaintiff attend a defence medical exam. When the Plaintiff attended the doctor required a consent form to be signed.  The Plaintiff refused and the exam did not take place.
The Defendant obtained a new order requiring attendance and signing the form.  In making this order Madam Justice Harris provided the following reasons:

[37]         The only remaining issue is whether the form of consent which Dr. Hirsch proposed is reasonable. While it is not strictly necessary for me to address this issue in light of my conclusions above, in the circumstances of this case, I consider it appropriate to do so.

[38]         The plaintiff objects to the form on the basis that:

                           i.          it requires the plaintiff to agree that Dr. Hirsch is independent of the parties;

                          ii.          that she is not in a doctor/patient relationship with him;

                        iii.          that she received an explanation as to the nature of the assessment; and

                        iv.          that she was there voluntarily or pursuant to a court order arising from Rule 7‑6(1).

[39]         The form of consent proposed by Dr. Hirsch was as follows:

Consent to Independent Medical Examination

I, ________________, date of birth ___________________ consent to participate in an independent medical examination (“IME”) conducted by Dr. Gabriel Hirsch. I am participating in the IME voluntarily or pursuant to Court Order arising from Rule 7-6(1) of the British Columbia Supreme Court Civil Rules.

I understand that Dr. Hirsh is not my treating physician and that no doctor/patient relationship arises from the IME. I also understand that Dr. Hirsch is independent of the parties involved in this matter and is not an employee of the party requesting the IME.

I acknowledge that I have received an explanation as to the nature of the assessment that will be undertaken in the IME and I authorize Dr. Hirsch to perform an assessment that includes a medical history, physical examination, review of medical imaging, tests, medical records, reports, and/or employment and school records related to my condition.

I understand that the assessment may be terminated if Dr. Hirsch determines that it is in the interest of my health and safety. I understand that I may choose to stop the assessment at any time.

I acknowledge that subsequent to the IME and pursuant to Rule 7-6(1) of the British Columbia Supreme Court Civil Rules, Dr. Hirsch may provide a medical-legal report to the referring source for the purposes of litigation. I release Dr. Hirsch and his employees from any claims which may arise as a result of the release of the above information. I am aware that the right to distribution of the report lies with the referring source and not Dr. Hirsch.

In signing this document I consent to take participate in this IME.

Dated this _________ day of _____________, 2016.

 

Signature of Evaluee: _________________________

Print Name: _________________________________

Signature of Witness: _________________________

Print Name: _________________________________

[40]         With respect to the plaintiff’s first objection, the plaintiff suggests that Dr. Hirsch is not “independent” as he receives instructions and communicates with only one party. While it is true that Dr. Hirsch was retained by one party to the litigation, under Rule 11-2, an expert who is retained to provide an opinion, which includes physicians conducting IME’s like Dr. Hirsch, has a duty to assist the court and not be an advocate for any party. Dr. Hirsch is, therefore, to perform a role that is truly independent of the parties to the litigation. In that regard, I note that both parties refer to Dr. Hirsch conducting an “independent medical examination” in their correspondence, which is reflective of the generally accepted role of physicians conducting such examinations. I do not accept that the reference in the consent form to Dr. Hirsch being independent or to his conducting an independent medical examination to be unreasonable.

[41]         The plaintiff also objects to the requirement that the plaintiff confirm her understanding that there is no doctor‑patient relationship arising from the IME. In my view, the statement, read in its context, elucidates its meaning, that is, Dr. Hirsch, although conducting a medical assessment, is not her treating physician. I am not prepared to find, without any evidence, that this statement is ambiguous or outside the knowledge of the plaintiff who, I note from the materials included in the Application Record, is a registered nurse working in a hospital setting. In any event, this is a matter which the plaintiff could ask of Dr. Hirsch should she need any clarification.

[42]         The third objection is that the plaintiff is asked to confirm in advance that she has received an explanation as to the nature of the assessment. Again, I do not have evidence that suggests Dr. Hirsch did not or would not discuss the nature of the assessment prior to commencing the IME or prior to asking the plaintiff to complete the consent form. I find no basis for this objection.

[43]         The final objection to the proposed form of consent is that it requires the plaintiff to agree that her attendance is voluntary or pursuant to Rule 7-6(1). The plaintiff suggests that it is either one or the other. In my view, these are the two usual circumstances under which a party participates in an IME, and the reference is simply descriptive of the basis for the plaintiff’s participation. I do not accept there is merit to the plaintiff’s objection.

[44]         Accordingly, I find that the consent form proposed by Dr. Hirsch to be reasonable.

Indivisible Injury Principle Applied Where Injuries Aggravated in Limitation Barred Event

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Helpful reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, showing the Plaintiff friendly scope of the Indivisible Injury principle.
In today’s case (Griffioen v. Arnold) the Plaintiff was involved in two vehicle collisions.  The first in 2011.  She sued the at fault motorist who admitted liability.  She was involved in a second collision in 2014.  She was a passenger in her husband’s vehicle.  He was at fault for the second crash but she chose not to sue and the limitation period to do so expired.  The second crash aggravated the injuries from the first.
The Defendant argued that the Plaintiff’s damages must be reduced to the extent that the second crash aggravated them.  The Court disagreed noting the principle of indivisible injury allows the Plaintiff to fully recover damages from the first Defendant who is then burdened to seek indemnification from other contributing tortfeasors.  In applying the indivisible injury principle in the Plaintiff’s favour Mr. Justice Bracken provided the following reasons:

[117]     In this case, the plaintiff elected not to sue her husband, who was the person at fault in the second accident.  She admits that he was at fault and that her right to bring an action is now statute-barred by the Limitation Act, SBC 2012, c. 13.

[118]     In Bradley v. Groves, 2010 BCCA 361 at paras. 32 – 34, the court said:

[32]      There can be no question that Athey [Athey v. Leonati, [1996] 3 S.C.R. 458] requires joint and several liability for indivisible injuries.  Once a trial judge has concluded as a fact that an injury is indivisible, then the tortfeasors are jointly liable to the plaintiff.  They can still seek apportionment (contribution and indemnity) from each other, but absent contributory negligence, the plaintiff can claim the entire amount from any of them.

[33]      The approach to apportionment in Long v. Thiessen [(1968), 65 W.W.R. 577 (C.A.)] is therefore no longer applicable to indivisible injuries.  The reason is that Long v. Thiessen pre-supposes divisibility; Long requires courts to take a single injury and divide it up into constituent causes or points in time, and assess damages twice; once on the day before the second tort, and once at trial.  Each defendant is responsible only for their share of the injury and the plaintiff can recover only the appropriate portion from each tortfeasor.

[34]      That approach is logically incompatible with the concept of an indivisible injury.  If an injury cannot be divided into distinct parts, then joint liability to the plaintiff cannot be apportioned either.  It is clear that tortfeasors causing or contributing to a single, indivisible injury are jointly liable to the plaintiff.  This in no way restricts the tortfeasors’ right to apportionment as between themselves under the Negligence Act, but it is a matter of indifference to the plaintiff, who may claim the entire amount from any defendant.

[119]     In Pinch v. Hofstee, 2015 BCSC 1888, the plaintiff claimed compensation arising from a motor vehicle accident.  He was subsequently injured in a second accident and the injuries from the two accidents were found to be indivisible.  The court considered Bradley v. Groves, but found that any claim for the second accident was statute-barred by section 10(1) of the Workers Compensation Act.  Burnyeat J. held that the plaintiff could not recover full damages from the defendant in the first accident.

[120]     At para.60, Burnyeat J. stated:

[60]      I conclude that the Legislature has made it clear that the principles set out in Bradley, supra, do not apply where there is a statutory bar to recovery of what may be found to be indivisible damages.  Section 10(1) of the Act is but one example of the inability to recover indivisible damages arising out of a separate breach of duty of care.  A further example might be illustrated by a situation whereby proceedings relating to a first tortious act were not commenced within the limitation period and a second tortious act occurred. In those circumstances, I cannot conclude that damages would be available where an action was not commenced relating to the first act, a subsequent act caused injuries which were found to be indivisible from the first act, and a claim was advanced against the second tortfeasor for damages for the injuries caused both by the first and the second tortious acts.  Just as a claim for damages for a second tortious act could not “give life to” recovery of damages for a first act where a limitation period had expired so also s. 10(1) of the Act has taken away “any right and rights of action” available to Mr. Pinch and any recoverable “damages, contributions or indemnity” that might have been available to Mr. Pinch as a result of MVA #2.

[121]     In Sandhu v. Vuong, 2016 BCSC 1490, Master Baker followed Pinch v. Hofstee, and held that the defendant in one action could not commence a third party proceeding against a person liable for a second accident that happened in Manitoba because the accident there was statute-barred by a “no-fault” automobile insurance regime.

[122]     I do not agree that the situation here is the same as where an action is statute-barred as in both Pinch and Sandhu.  There was no right of action in British Columbia against the person liable for the second accident.  In Pinch, the Workers Compensation Act prevented an action and in Sandhu, the court held that as there was no right of action in Manitoba, there could not be a right in British Columbia.

[123]     In both Pinch and Sandhu, the plaintiffs were not simply beyond the time limit for commencing an action, but would be barred by statute from commencing an action even if they had done so within the statutory time limits.

[124]     It seems to me that it was open to the defendants in this case to commence a third-party action provided it was commenced within the time limit that started when the defendants became aware of their right to commence an action against the plaintiff’s husband.  That is, the time limits for the defendants may not be the same for a third party action as for an action by the plaintiff. 

[125]     The plaintiff obviously knew of her right to commence an action from the time of the accident.  The defendants were aware of their right to commence an action from the time they discovered they might be liable for some damages from the second accident.  I therefore find that Pinch and Sandhu are distinguishable from the facts of this case and in the circumstances, I am not prepared to apportion liability to the plaintiff’s husband in reliance on the principle of indivisibility and will apply the principle in Bradley.