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$150,000 Non-Pecuniary Damage Assessment in Polytrauma Injury Case

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for multiple injuries sustained in a vehicle collision.
In today’s case (Chappell v. Loyie) the Plaintiff was injured when his motorcycle was struck by the Defendants vehicle in an intersection collision.  He suffered numerous injuries, some of which resolved others which caused ongoing disability.  In assessing non-pecuniary damages at $150,000 Madam Justice Fisher provided the following reasons:

[176]     I find that Mr. Chappell sustained the following injuries as a result of the accident:

a)       injuries to his feet and ankles which caused severe pain initially and substantially resolved within about four months;

b)       soft tissue injuries to the back and neck with chronic, ongoing pain that affects his level of activity and his ability to cope with his other injuries;

c)       carpal tunnel syndrome in the left hand, which caused significant pain over time but resolved within a month following carpal tunnel release surgery in November 2012, with an 80% risk that he would have developed carpal tunnel in his left hand in any event;

d)       headaches that are cervicogenic in origin and have become chronic partly as a result of his long term use of pain medication;

e)       injury to the previously reconstructed ACL in the left knee, which caused it to eventually dissolve and require replacement and which continues to cause intermittent pain, but with a 20% risk of damage to the reconstructed ACL regardless of the accident;

f)        injury to the rotator cuff in the right shoulder that eventually required surgical repair, which has substantially resolved but continues to cause intermittent pain, but with a 20% risk of re-injury in any event and an 80% risk of problems in the right shoulder due to degenerative problems, some of which are now present;

g)       a mild TBI that did not cause significant symptoms and resolved within about two months following the accident; and

h)       severe depression and anxiety that developed over a year after the accident, is ongoing, and may improve with concentrated treatment.

…

[200]     Mr. Chappell’s multiple injuries are serious and cumulative, the prognosis for a pain-free existence is poor, and their effect on Mr. Chappell’s life has been profound. His colleagues and friends who testified described him before the accident as a positive, active “larger than life” individual who was “happier building a fence for you than watching a movie”. He was known for his strength. Tab Buckner, one of his oldest friends who worked with him in construction, said he was very physical, proficient and could think outside the box. Steve Raby, one of his fellow firefighters, described Mr. Chappell as “one of the biggest, strongest people” he knew, a happy person who liked to socialize, and “not a complaining kind of guy”. Todd Roberts, another firefighter and hunting friend, said that Mr. Chappell organized all the gear for their hunting trips and all he had to do was “jump in the truck”. Mr. Chappell’s wife, Cheryl Ann, testified about the deep happiness and intimacy they had found together, the joys and challenges of blending their families and their common interests in home renovation projects. She said that her husband loved his work as a firefighter, could do “pretty much anything” when it came to renovations, and was very particular about his lawn and garden.

[201]     The picture painted by these witnesses of Mr. Chappell after the accident stands in stark contrast to these descriptions. They all said that Mr. Chappell is no longer active, doing either construction work, hunting or social activities, and the most he does is to take an advisory role in projects. Many thought he was coping with what they perceived as pain and fatigue. Todd Roberts described his activity level as “next to none” and his personality as drastically changed, “he just seems his mind is elsewhere”. Tab Buckner noticed that Mr. Chappell had difficulty getting in and out of chairs, could barely move at times, seemed angry with the world, and was not coping well with his wife and stepsons. Anthony Tanner, his oldest stepson, observed that the relationship between his mother and Mr. Chappell had become more strained. Mrs. Chappell described the course of Mr. Chappell’s injuries and recovery since the accident, his obvious pain, his growing frustration and then sadness at his lack of progress, and the personal difficulties that developed between them as he became more irritable, impatient and argumentative. There is no longer any intimacy in their relationship, which is obviously a very difficult issue for both of them.

[202]     I found all of these witnesses to be honest and straightforward, but Mrs. Chappell was quite exceptional. Throughout her testimony she was responsive and respectful, and while of course she was supportive of her husband, she did not overstate the positive or understate the negative. Her evidence was entirely consistent with Mr. Chappell’s evidence about the nature and quality of their lives together and what has happened to their relationship since the accident.

[203]     All of this evidence is consistent with how I have already described Mr. Chappell: after five years of dealing with his physical injuries, he is a broken man, emotionally isolated, suffering in constant pain, ashamed of his physical limitations and his inability to cope, and desperate for solutions.

[204]     Moreover, by June 2012, Mr. Chappell was forced to give up his career as Captain of Suppression and abandon his ultimate goal of becoming Battalion Chief of Suppression. This loss of a job he loved caused him great personal distress. As I indicated above, while there was a measureable risk that he would have had to do this at some point in any event, this change occurred much sooner than it would have absent the accident. I will come back to this when I address future loss of capacity.

[205]     In these circumstances, I award of $150,000 for non-pecuniary damages, after taking into account the extent of the risks outlined above that some of Mr. Chappell’s conditions would have occurred regardless of the accident.

"Cut and Paste Affidavit" Derails Defence Medical Exam Application

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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a defence request for an independent medical assessment of a Plaintiff in part due to the use of a “cut and paste affidavit”.
In the recent case (Mirzai-Sheshjavani v. Ho) the Plaintiff was involved in a collision and sued for damages.  As trial neared the Plaintiff served expert reports and the Defendant applied to compel the Plaintiff to attend an independent medical exam to obtain a responsive report.  The request was denied with the Court criticizing the supporting materials.  In dismissing the application Master Baker provided the following reasons:

[3]             The global response addressed the — I think the term used in some of the email was the “institutional litigant” approach of the defence. I agree in large measure with that. I agree just from the materials before me. Mr. Jiwa says there are too many of these applications, “these applications” being applications for defence medical examinations brought very proximate to the trial, often with short leave. He is correct.  There is no utility in my getting into an anecdotal review, but it has become quite common in chambers to have that application. Yes, short leave is typically given. Yes, the applications are heard, and I guess, yes, sometimes the applications are successful, perhaps often, I do not know, but it is becoming the case where a fair proportion of the short-leave applications that we hear on a daily basis relate to just this subject. His conclusion and his assertion is that this represents an institutional litigant who is, as he termed it, sitting on their hands until the trial date approaches. I do not know. I do not know whether that is the case or not. I suspect it may be because litigation is being driven by adjustors and not by counsel. I believe it may be the case that counsel are not being given enough latitude to exercise their professional judgment. I do not know.

[4]             It is not for me to tell them how to do their job, but that might explain a few things, but in the particular case before me, the affidavit in support — one of the affidavits in support — is by Dr. Hummel indicating why he needs to do a physical examination of the plaintiff and there is just absolutely no question that this is a cut-and-paste affidavit. It is taken literally verbatim from the affidavit of — I think it is — Dr. Reebye in one of the other cases cited to me – down to the punctuation.

[5]             The interesting paragraph, paragraph 9(d), where he says, “I understand that the plaintiff has been assessed by Dr. Heran and Dr. Kazemi…” — well, that was not verbatim, different doctors — “…whose reports I have not reviewed extensively, but sufficiently to determine that they noted the plaintiff’s complaints of neck, back, and shoulders causing headaches,” et cetera, on down to, “To properly assess his claimed injuries, I need to review the plaintiff’s history, accident information provided, and conduct a physical examination.”  These are all conclusions. He does not say, “Well, I notice that Dr. Heran did this or did not do this, performed this test which I think as a professional is inappropriate for the symptoms suggested”; no, nothing, he just simply says, “I need to look at this person,” and when he says that, he essentially, in my respectful view, says, “I need to do the same things Dr. Heran did,” but he just says that without giving us any reasons and, without reasons, there is no evidence, there is no requirement proven, and the application fails, but I also agree with Mr. Jiwa’s submissions that there is not a surprise here.

[6]             Yes, I can see the defence’s point, but I can also see the other elements and aspects of Dr. Kazemi’s report which, as Mr. Jiwa points out, says, among other things, he needs to be assessed for neurosurgery. Well, maybe you can say that is different than being assessed by an orthopedic surgeon, I do not know, but it is obvious that Dr. Kazemi certainly considered that a full understanding of the plaintiff’s circumstances would require further inquiry by another specialist and, in fact, the very specialist or physician of the same specialty that he considered who happens to be Dr. Heran. So no surprise there.

[7]             The application is dismissed.

"Outlandish" Uncorroborated Injury Claims Rejected

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, largely rejecting many “outlandish” claims in a personal injury lawsuit that were not supported by medical evidence.
In today’s case (Lamb v. Fullerton) the Plaintiff was involved in several collisions and sued for damages.  He claimed aggravation of a historic head injury and further claimed severe consequences including ‘vomiting 100 times in a day‘ and severe bowel incontinence.  The reported symptoms and any relationship to the collisions in question were not corroborated by medical evidence.  The court was critical both of the lack of evidence in support of the claim and the Plaintiff’s credibility.  In rejecting these and other portions of the claim Madam Justice Warren provided the following reasons:
9]             Mr. Lamb’s testimony was unsatisfactory.  Regrettably, I have concluded that it is almost wholly unreliable in establishing that any injury or aggravation of injury was caused by these accidents, particularly in the complex circumstances of a serious, ongoing pre-existing condition and two intervening accidents that are not the subject of this action.
[10]         Mr. Lamb unreasonably persisted in making claims that were inconsistent with either independent evidence or other aspects of his own evidence, and he made little, if any, attempt to explain the inconsistencies.  Two particularly striking examples were his insistence that his behavioural and memory problems were aggravated by the accidents in question and his repeated assertion that he broke his clavicle in the December 8, 2010 accident…

[14]         Mr. Lamb also baldly advanced claims, some of which were out of the ordinary and even outlandish, without corroborating evidence in circumstances where one would expect corroborating evidence to exist.

[15]         Mr. Lamb claimed to have been vomiting 100 times in a day.  He claimed that the bowel incontinence was so severe that he was using countless incontinence pads and 20 gallons of isopropanol annually to clean his soiled clothing.  He offered his own opinion as to the cause of these conditions, which was blood accumulating in his stomach as a result of bleeding from his esophagus caused by wincing and cringing due to the pain.  Yet, he appears to have taken few, if any, steps to obtain medical attention for these conditions; he offered no medical evidence to support his own dubious opinion as to the cause of these conditions; and he produced not even a single receipt for isopropanol or incontinence pads…

[20]         Mr. Lamb acknowledged having been untruthful in other contexts.  He admitted that he told a surgeon who performed his cataract surgery in June 2012 that he had undergone chemotherapy for leukemia but he seemed to reluctantly acknowledge during the trial that he has never had leukemia…

[85]         As I have already explained, because Mr. Lamb’s subjective reports provide the foundation of his claims it is particularly important to examine his evidence carefully.  For the reasons already expressed, I have concluded that his evidence was neither credible nor reliable.  He has failed to marshal any persuasive independent corroborating evidence.  Most importantly, he has presented no medical evidence in respect of the cause of the injuries and conditions he claims to suffer from; whether his pre-existing conditions were aggravated by the accidents; if so, the extent of the aggravation; or the impact of the two intervening accidents on his current condition.  In the circumstances of this case, such evidence is necessary in order to establish possible causes of the injuries and conditions about which he complains:  Deo v. Wong, 2008 BCCA 110 at para. 19.

Plaintiff "Antics" During Cross Examination Undermine Injury Claim

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting substantial aspects of a personal injury claim due in part to concerns about plaintiff credibility.
In today’s  case (Siddall v. Bencherif) the Plaintiff was injured in 2 separate collisions that the Defendants accepted fault for.  Much of her claim was rejected at trial where the presiding judge raised concerns about her credibility and “antics” while testifying.  In concluding that “the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her” Mr. Justice G.C. Weatherill provided the following reasons:
[183]     A plaintiff who accurately describes his or her symptoms and circumstances before and after the collision without minimizing or embellishing them can reasonably anticipate that the court will find his or her evidence to have been credible and reliable. 
[184]     Regrettably, that did not occur in this case.   The plaintiff was not particularly forthcoming during her evidence-in-chief.  Significant aspects of her story were not revealed until cross-examination at which point she was evasive and took great pains to minimize the history of her pre-Collisions physical and emotional issues.  Despite insisting that her memory was “good”, on several occasions she had to be taken to her relatively recent examination for discovery transcripts before she was prepared to recall her previous evidence.  She had difficulty agreeing that her income tax returns reflected her actual income because she could not remember whether she had worked more than what they reflected.  Although the details of her many pre-Collisions psychological and psychiatric issues were set out in voluminous historical clinical records, including the answers to questionnaires in the plaintiff’s own handwriting, she was either unable to recall, or unwilling to admit to them.  She was also unable to recall significant portions of the clinical history set out in the various expert reports filed in this action that had been provided by the plaintiff herself. 
[185]     When clinical records or other documents were put to the plaintiff that contradicted her evidence, she insisted that the documents were likely in error or that she had been misinterpreted or misunderstood. 
[186]     The poor quality of the plaintiff’s memory at times when it suited her is at odds with her obvious high level of intelligence.
[187]     During her cross-examination, the plaintiff became increasingly evasive, argumentative and adversarial.  She often launched into lengthy, rambling answers that were replete with speculation and devoid of factual foundation.  She repeatedly played down her pre-Collisions symptoms as minor and inconsequential and emphasized her post-Collisions symptoms as new and debilitating.
[188]     Although the plaintiff appeared to have no difficulty reviewing documents and answering questions during her direct examination, she requested a recess early in her cross-examination, complaining of having difficulty extending her arms to read a one page document due to pain in her arms and shoulders.  However, she did not indicate any further difficulty with her arms during the remainder of her lengthy cross-examination, interrupted as it was by other witnesses over four days.  Indeed, throughout her cross-examination she frequently used her arms to gesture during her answers, as people typically do when attempting to make a point.  She continually alternated between standing and sitting in the witness box, which is in noticeable contrast to Ms. Tencha’s observations during the Functional Capacity Evaluation that the plaintiff was capable of engaging in casual sitting for 1 hour and 40 minutes.
[189]     The plaintiff’s antics and demeanour during cross-examination, as well as her numerous and vehement attempts to convince the court of her ordeal, evoked the oft-quoted line from Hamlet: “the lady doth protest too much”.
[190]     I find that, overall, the plaintiff was not a particularly credible or reliable witness regarding the effect that the Collisions had on her, which I find she exaggerated.  Unfortunately, I am unable to give her evidence in that regard much weight. 
[191]     As a consequence, I have not found the opinion evidence of the medical experts of much assistance.  That is not because the experts are lacking in the necessary experience and expertise in their respective fields.  Indeed, they are all highly qualified.  Rather, it is because medical experts necessarily take a patient’s complaints at face value and then offer an opinion based on those complaints.  Here too they relied for their respective opinions to a significant degree on what they were told by the plaintiff without the benefit, as the court had, of a thorough and lengthy cross-examination of the plaintiff during which her self-reports and evidence generally were tested.
[192]     In contrast to the plaintiff, ….gave his evidence in a down-to-earth and forthright fashion.  He was clear, candid, animated, articulate and passionate about his testimony.  I find that his evidence was credible and generally reliable.

Court Finds It is an Abuse of Process For ICBC to File Inconsistent Pleadings From Single Collision

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Interesting reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding it is an abuse of process for a defendant sued by multiple parties from a single collision to admit liability in one action but deny in the other “where there are no facts to distinguish the two”.
In today’s case (Glover v. Leakey) the Defendant was involved in a crash and injured two passengers.  One sued and fault was admitted and ultimately settlement reached.  The second sued but fault was denied.  In the midst of a jury trial the Plaintiff discovered the inconsistent pleadings and asked for a finding of liability.
Due to a misunderstanding the matter proceeded to verdict and the jury found the Defendant was not negligent.  Before the order was entered the Court considered the matter and found that the liability denial was an abuse of process, stripped the defence and granted liability in favour of the plaintiff.  In reaching this result Madam Justice Gropper provided the following reasons:
[67]         In considering my analysis of this application, I must note that the Insurance Corporation of British Columbia (ICBC), the Province’s public mandatory motor vehicle insurer had conduct of both the Glover and the Yeomans actions. The evidence provided is sparse, but it is clear that the adjuster in the Yeomans Action determined that liability would be admitted on behalf of Mr. Leakey whereas the adjuster in the Glover action determined that liability would be denied. I expressly find that ICBC knew of the inconsistent pleadings and that the insured, Kenneth Leakey knew or ought to have known of the inconsistent positions…

[93]         The defendant claims that to find these pleadings as inconsistent and an abuse of process will discourage admissions, contrary to public policy. I find that there is much larger public policy at stake. It is an abuse of process to allow a defendant to admit liability in respect of one passenger and deny liability in respect of the other where there are no facts to distinguish the two. Requiring a party, even ICBC, to file consistent pleadings is not onerous and, with respect, is a principled way to proceed. The pleading of inconsistent positions in this case cannot be condoned.

[94]         I have declared a mistrial in this case. It may appear that my decision on the abuse of process application is moot. It is not for three reasons:

1.               A declaration of mistrial means that the matter will proceed to a new trial.

2.                I grant judgment on the liability issue in favour of the plaintiff.

3.               The plaintiff seeks special costs related to the abuse of process and has asked for leave to provide further submissions in that regard.

[95]         Both parties may seek to appear to address the issue of special costs based on my finding of an abuse of process.

Defense Expert Appointment Dismissed for "Waiting at their Peril"

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Unpublished reasons for judgement were recently released by the BC Supreme Court, Victoria Registry, dismissing a defence application for an independent medical assessment for being brought too late in the process.
In the recent case (Bains v. Antle) the Plaintiff was injured in a collision and sued for damages.  The Defendant requested the Plaintiff to attend a 2 day Functional Capacity Assessment less than 84 days before trial.  The Plaintiff refused and a court application to compel attendance was brought.  Master Harper dismissed the application finding the Defendant was too late and waited at their peril.  In dismissing the application the Court provided the following reasons:
Quote late DME dismissal

ICBC's "Two Hats" Derails Litigation Privilege Claim

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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, ordering ICBC to produce and investigative report and video.
In today’s case (Oates v. Burton) the Plaintiff was injured in a collision and sued for damages.   After being represented by a lawyer the Plaintiff applied for disability benefits from ICBC and shortly after ICBC ordered surveillance.
The Plaintiff, in the context of the injury lawsuit, sought production of the surveillance and the investigator’s report but ICBC refused to produce this arguing it was privileged being created for the dominant purpose of use in the (at the time contemplated) injury lawsuit.  Mr. Justice Voith disagreed finding the report was likely created for dual purposes including investigating the Plaintiff’s claim for disability benefits.  In ordering production the Court provided the following reasons:

]         This case turns, as is generally the case, on the second or more “challenging” question; Raj at para. 12. That “challenging” question is whether Item 4.3 was generated for the dominant purpose of use in litigation.

[24]         I return to the narrow and focused chronology that I emphasized earlier. On August 23, 2013, plaintiff’s counsel, more than ten months after he had first advised the Insurance Corporation of British Columbia that he had been retained, sought an extension of the plaintiff’s temporary total disability (“TTD”) or Part 7 benefits. On September 5, 2013, or less than two weeks later, Item 4.3 was created. Almost immediately thereafter, plaintiff’s counsel was contacted and the plaintiff’s TTD benefits were extended. Approximately nine months later, the plaintiff’s Notice of Civil Claim was filed.

[25]         The plaintiff argues that at least one purpose that underlay the creation of Item 4.3 was the defendants’ desire to investigate or assess the plaintiff’s TTD benefits claim. Furthermore, and importantly, the plaintiff argues that it was necessary for the defendant to expressly address the relationship between the plaintiff’s TTD benefits claim and the creation of Item 4.3…

[31]         I do not say that a deponent, who prepares an affidavit that is intended to support a claim for litigation privilege, must address and negate all other potential or notional purposes, however remote, for which that document might have been prepared. In this case, however, the prospect or likelihood that Item 4.3 was created to address, at least in significant measure, the plaintiff’s TTD benefits claim is not fanciful or speculative. The preparation of Item 4.3 is bracketed, on the one side, by the ten months from when the defendants learned that the plaintiff had retained counsel and by eight months, on the other side, by when the Notice of Civil Claim was ultimately filed.

[32]         Conversely, Item 4.3 was prepared almost immediately on the heels of the defendants learning that the plaintiff was seeking an extension of her TTD benefits. In such circumstances, I do consider that there was a positive obligation on the part of the defendants’ deponent, the adjuster who oversaw the matter, to expressly and directly address the relationship of Item 4.3 and the plaintiff’s claim for TTD benefits, and the extent to which that claim gave rise to the creation of Item 4.3. That failure, in these circumstances, undermines the defendant’s affidavit evidence, calls into question the dominant purpose for the creation of Item 4.3, and is fatal to the defendants’ claim for litigation privilege over Item 4.3.

[33]         This conclusion is reinforced by the affidavit evidence of the adjuster on this central issue – evidence that the Master in the Reasons accurately described as “not particularly persuasive”. Specifically, the adjuster in her affidavit said:

… By the summer of 2013, the medical information seemed to indicate substantial recovery but with some partial disability. To get a better understanding of her function, I hired a private investigator to review the Plaintiff’s level of activity. My intention on retaining the investigator was to use the results of the investigation to hopefully assist with the defence of the claim and to assist counsel to prepare for litigation not yet commenced but reasonably anticipated.

[34]         Accordingly I allow the plaintiff’s appeal, and I order that Item 4.3 be produced to the plaintiff within seven days of these reasons being released. The plaintiff is to have the costs of both this appeal and of her earlier application.

ICBC's "Casual Disregard" of Court Order Results in Steep Costs Punishment

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, hitting ICBC with a steep costs award for the “casual disregard” of a Court disclosure order.
In today’s case (Norris v. Burgess) the Plaintiff was injured in a 2010 collision and sued for damages.  Prior to trial ICBC offered to settle the claim for $678,500.  The Plaintiff rejected this offer and proceeded to trial where a jury awarded $462,374.  After statutory Part 7 deductions the amount was reduced by $70,196.
Normally where a Plaintiff is awarded less than a defence formal settlement offer they are stripped of some of their costs and sometimes ordered to pay some of the Defendant’s costs.  ICBC sought such a result but the Court refused.  Mr. Justice Funt instead ordered that ICBC pay the Plaintiff an additional $155,340.86 in ‘special costs’ because the insurer disregarded a Court order to produce surveillance evidence.  In reaching this decision Mr. Justice Funt provided the following reasons:
[65] As noted, at the October 20, 2015 trial management conference, Justice Koenigsberg ordered the listing and description of any surveillance or video to occur on or before October 23, 2015. The existence of the 2015 Video was not disclosed until the start of the fourth week of trial and was, as Mr. Miller stated, harmful to the defence.
[66] ICBC is a public insurance company and an agent of our provincial government. It is a sophisticated litigant which assumes conduct of trials on behalf of many insureds in our province.
[67] A simple “pilot check” by ICBC, possibly in the form of an email or call to Mr. Levy, a review of its paid surveillance video invoices, or a review of its file notes, would have revealed the existence of the 2015 Video. The Court finds that ICBC showed a casual disregard for the October 20, 2015 Court Order; an order designed to ensure that the scheduled jury trial was heard without surprises or ambush.
[68] Mr. Miller stated that an ICBC adjuster often handles a large number of files and that this may explain the late disclosure of the 2015 Video. If ICBC adjusters are overworked and therefore prone to make mistakes, then it was incumbent on ICBC, on being told by its counsel of the October 20, 2015 Court Order, to ensure that a mistake had not been made.
[69] The late disclosure affected the efficient administration of justice. It required plaintiff’s counsel to consider the plaintiff’s options, and likely discuss and receive instructions on a significant matter just as the plaintiff’s case was about to close, rather than be focused on the conduct of the plaintiff’s case..

[75]         When a jury trial is disrupted and affected by the actions of a party, the court’s rebuke or reproof is more likely warranted.

[76]         The reputation of the court was also affected. Especially with a jury trial, a reasonable member of the public would have questioned the efficient workings of the trial and, more generally, the efficient administration of justice. He or she would question the significance and respect ICBC gives a court order designed to avoid surprise and trial unfairness.

[77]         Finally, the video surveillance for all three years was central to the trial generally. Of course, the actual weight given to this evidence remains in the jury room, as it properly must.

[78]         In sum, ICBC’s casual disregard for the disclosure rules, especially when reinforced by the October 20, 2015 Court Order, warrants rebuke in the form of an award of special costs.

 
 

$6 Million Damage Assessment After Teen Injured By Corroded Lamppost

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Reasons for judgement were published this week by the BC Supreme Court, Vancouver Registry, assessing damages for profound injuries after a plaintiff fell two stories after falling while swinging from a corroded lamp-post.
In this week’s case (Mackey v. British Columbia) the Court summarized the facts as follows
On March 31, 2007, when David Mackey was 17, he climbed onto a concrete baluster.  The baluster formed part of a railing along the perimeter of a pedestrian plaza at 812 Wharf Street, overlooking the waterfront, in Victoria.  On the baluster stood a lamp post.  It was about 6 feet tall.  David Mackey swung around the lamp post.  It was corroded to the core.  When David Mackey swung around it, the lamp post came loose.  It tottered, and he fell two storeys onto the concrete walkway below.  He suffered severe traumatic brain injury.
The Court found the injury caused profound disability and awarded damages assessing a lifetime of earnings and care totaling nearly $6 million.
The court reduced this amount by 65% to account for the Plaintiff’s contributory negligence.  In finding the Province 35% and the Plaintiff 65% for the incident Mr. Justice MacIntosh reasoned as follows:

[39]         From the evidence above, I reach the following conclusions.

[40]         The lamp post was severely corroded when David Mackey fell.  The lamp post had never been inspected or maintained to see that it was intact.  The annual painting did little or nothing to protect it because the corrosion was allowed to continue unchecked, both under the skirt and immediately above it.  Further, the skirt of the lamp post was never bolted to the baluster, which would have provided the necessary support.

[41]         But for the corroded state of the lamp post, and but for the skirt not having been bolted, I find that the accident probably would not have happened.  What probably happened was that as David Mackey was swinging around the lamp post, the lamp post came loose and gave way.  Probably, the lamp post coming loose and giving way caused David Mackey to fall to the concrete walkway below.  I adopt here what McLachlin C.J. wrote for the majority at paras. 9 and 10 in Clements v. Clements, [2012] 2 S.C.R. 181:

[9]        The “but for” causation test must be applied in a robust common sense fashion.  There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  [Citations omitted.]

[10]      A common sense inference of “but for” causation from proof of negligence usually flows without difficulty.  Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss. [Citations omitted.]

[42]         Also, however, it is obvious that but for David Mackey getting up on the baluster, and swinging around the lamp post, the accident would not have happened…

[60]         When applying the provisions of the two statutes, the Occupiers Liability Act and the Negligence Act, as they have been considered in Cempel, Bendzak, Sall andPaquette, cited above, I find the PCC to be 35% at fault and David Mackey to be 65% at fault for the accident.  David Mackey was nearly 18.  He mounted a safe railing where there was a dangerous drop below.  He had probably also heard Ms. Arner’s warning to Ryan Ramsay.  On the other hand, the PCC had neglected entirely the adequate, or indeed any, maintenance of the lamp post, apart from subcontracting an annual paint job.  The lamp post, on top of the railing, was its own accident waiting to happen.  As noted earlier, it could have been pushed over by a force of only 12.5 pounds.

No Forced "Consent" When Attending Court Ordered Medical Examination

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Update January 30, 2017 – the below case, in reasons for judgement released today, was largely overturned on appeal
______________________________________________
Although there are conflicting authorities on the subject in British Columbia, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding it is not appropriate for a Court to order a Plaintiff to sign a ‘consent’ form when attending a court ordered independent medical exam.
In today’s case (Gill v. Wal-Mart Canada Corporation) the Plaintiff sued the Defendant for personal injuries after a slip and fall incident.  In the course of the lawsuit the Plaintiff agreed to be examined by a physician of the Defendant’s choosing but refused to sign a ‘consent’ form the physician required.  The Defendant asked the Court to order the Plaintiff to sign the consent form but the application was dismissed.  In finding judicially ordered ‘consent’ to be inappropriate Master Harper provided the following reasons:

[31]         In my view, because an order compelling an IME is discretionary, I am not bound by Kalaora or Nikolic to order that the plaintiff sign the consent form. I prefer to follow the reasoning of Peel. In addition, although Dr. Travlos and the College have a legitimate interest in ensuring that a person attending for an IME is properly informed about all aspects of the IME, there are alternative methods to compelled consent to convey the information. I conclude that the plaintiff in this case should not be compelled to sign the consent form required by Dr. Travlos.

[32]         Even if I were of the view that Ms. Gill should be compelled to sign a reasonable consent form, Dr. Travlos’s consent form contains clauses that are not reasonable.

i)       First, Ms. Gill should not be expected to have to agree in writing as to the definition of physiatrist: Slobodzian v. Mitchell and Hameiri (unreported, February 2, 2015, Courtenay Supreme Court Action S085376);

ii)     Second, the last paragraph of the consent form contains this statement: “I am signing this document voluntarily …”. Ms. Gill would not be signing the document voluntarily if compelled to do so by court order;

iii)    Third, the consent form says:

I hereby release Dr. Travlos, his employees and agents, from any and all claims whatsoever, which may arise as a result of the release of the above information.

The clause is difficult to interpret. Dr. Travlos might mean that he is released from liability for releasing the report to the referring source. Or, he might mean that he is released from liability for releasing the report to someone other than the referring source. In either case, a release of liability goes beyond the bounds of a reasonable consent form.

[33]         In Mund v. Braun, 2010 BCSC 1714, the IME doctor required the execution of a jurisdiction agreement. The plaintiff declined to sign it and the court declined to order the plaintiff to sign it on the basis that the court did not have jurisdiction to order the plaintiff to sign a jurisdiction agreement. The release of liability in Dr. Travlos’s consent form is in the same category and is therefore objectionable.

[34]         Both Dr. Travlos and the College have a legitimate interest in ensuring that persons attending IMEs understand the nature and purpose of the IME. Clarity is always better than confusion.

[35]         The options presented on this application were limited to the court ordering the consent form be signed, or not. In my view, there are other options. The desired outcome of a party attending an IME fully informed about the IME could be met if the court were asked to incorporate reasonable terms into the order granting the IME. Those terms would meet the reasonable and legitimate interests of the plaintiff, the defendant, the examining doctor and the College.

[36]         Of course, the terms would have to be acceptable to the doctor or the exercise is meaningless. A drawback to this option is the unnecessary increase in court applications. Both Dr. Travlos and the doctor in Kalaora said that most people seeing them for IMEs consent. It would not be proportionate to require all applications for IMEs to result in a court order.

[37]         The concerns about “improved communication by physicians” and “enhanced understanding by patients” expressed in the guideline could also be met by the doctor providing written information about the IME to the party in advance of the examination. This option would be simpler and less expensive than a court order incorporating the information the doctor seeks to convey to the person being examined.

[38]         An even better option might be for the College to amend its guideline to provide recommendations for physicians conducting IMEs that are court-ordered and not by consent.