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"It Makes Little Sense" To Require Continuous Particulars of Damages

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Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding that “it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed”.
In today’s case (Campbell v. Bouma) the Plaintiff was injured in a collision and sued for damages.  The claimed losses included past wage loss and special damages.  ICBC demanded that the Plaintiff provide particulars of “any claim of loss of earnings to date” and “of her out of pocket expenses”.
In dismissing these requests Master McDiarmid found that the Plaintiff was cooperative in the litigation and that it made little sense to require such claims to be particularized in the earlier stages of litigation.  The Court provided the following reasons:

[36]        The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.

[37]        It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.

[38]        Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.

[39]        Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date…

[44]        The particularization sought respecting specials resulted in plaintiff’s counsel providing a document listing specials; virtually all of those listed specials appear to have been disclosed by the plaintiff in her June 17, 2014 list of documents.

[45]        The particularization sought respecting “wage loss” was actually for “loss of earnings both past and prospective.” An order for past wage loss particularization can be appropriate; as quoted by Walker J. in Mansoorciting Cullen J., at para. 19:

…Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income … Those are matters of evidence and logical reasoning and inference not amendable to particulars.

[46]        Unlike the situation in Mansoor, the defendant in this case has some wage information that was available between the date of the accident, September of 2011, and March 14, 2012. The evidence before me is that plaintiff’s counsel has written to the employer and, no doubt will be providing updated information when received. There was nothing communicated to the plaintiff or her counsel of any particular urgency; they were working under the assumption that information and resulting disclosure were required to enable the defendant sufficient time to prepare for an examination for discovery scheduled for November 3, 2015.

[47]        Exercising my discretion after considering all of the circumstances in this case and applying proportionality, as I am required to do, the orders sought for particulars in paragraphs 1 and 2 of the notice of application are dismissed.

Private MRI Obtained for Diagnositic Puroses Producable in Injury Litigation

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to disclose the results of a private MRI to defendants.
In today’s case (Prothero v. Togeretz) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff’s physician wished for the Plaintiff to have an MRI and asked that this be obtained privately to expedite matters.  ICBC refused to pay for this service so the Plaintiff arranged to do so privately.  The Plaintiff did produce the MRI images arguing these were privileged.  The Court disagreed and ordered them to be produced.  In reaching this decision Master Caldwell provided the following reasons:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.

 

Court Critiques Defence Doctor's Opinion Following "Flawed" Investigation

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, with critical comments regarding a medico-legal opinion.
In today’s case (Chenier v. Szili) the Plaintiff was involved in a 2010 rear end collision caused by the Defendant.  The collision resulted in significant injuries.  In the course of the lawsuit the Defendant had the Plaintiff examined by a physician who provided evidence minimizing the connection between some of the plaintiff’s symptoms and the collision.  In rejecting this evidence where it differed from the Plaintiff’s neurosurgeon Mr. Justice Armstrong provided the following comments:

[154]     Dr. O’Farrell is a retired orthopaedic surgeon. He has not done any spinal surgery for 10 years. He stopped doing spinal surgery to allow room for younger, more skilled people to provide that service. His last scientific paper was published in 1996 and his last involvement in research was in 2003. He continues to see patients with back pain.

[155]     Dr. O’Farrell paid no regard to the plaintiff’s upper back injury and resulting symptoms. He recorded no complaints from the plaintiff regarding his upper back sensations of numbness and tingling in his right and left arms. He recalled that the plaintiff’s left arm improved but there were residual symptoms in his right arm.

[156]     Dr. O’Farrell did not recall performing an upper extremity examination of the plaintiff. He said it was possible he had not examined the plaintiff in that region.

[157]     He was asked about Dr. Lee, Dr. Watt and Dr. Sahjpaul identifying brisk reflexes in their examinations of the plaintiff. He was provided the notes from Dr. Lee, Dr. Watt and Dr. Sahjpaul. Dr. O’Farrell agreed that increased tone is evidence of spinal cord compression but said he did not find any indication of that condition in his examination. It was clear that if one accepted Dr. Sahjpaul’s findings, this would have been confirmatory evidence of a spinal cord compression.

[158]     There were other anomalies in Dr. O’Farrell’s examination and reporting of his findings concerning the plaintiff. These include:

(a)      He considered Mr. Chenier’s symptoms as mild because he thought Mr. Chenier was continuing to do his pre-accident heavy work with minor complaints. On this point he is simply wrong;

(b)      His written record reported Mr. Chenier complaining of pain when lifting or bending, but Dr. Farrell used the phrase discomfort in his report. Dr. O’Farrell did not adequately explain why he transposed pain into discomfort in his report;

(c)      He neglected to record that the plaintiff was involved in a double impact accident which would have indicated a more significant collision;

(d)      He reviewed notes indicating that the plaintiff went to a walk-in clinic on the day of the car accident and was observed to have right and left neck spasm and lumbar spasm, but these facts were omitted in his report. This was significant because evidence of right and left neck spasm and lumbar spasm was significant in respect to his diagnosis. They confirm the immediate post-accident onset of pain;

(e)      The doctor reported the plaintiff had previous chiropractic treatments but he did not ascertain the number of those treatments or the purpose of those treatments. The symptoms giving rise to those treatments and the number of treatments would have been relevant. He described his omission of any reference to this treatment as a possible “oversight”. Dr. O’Farrell conceded that the earlier chiropractic treatments could have been related to a pulled muscle rather than a symptomatic disc disease and he did not recall why he had not noted the frequency or reasons for the treatments;

(f)       He did not make any note of the plaintiff’s complaints of arm numbness and tingling in his fingers but insisted he would have inquired about them. The doctor said “it was not a major issue” for the plaintiff and he did not investigate this region further;

(g)      He observed that the plaintiff had a positive response indicating spinal pathology in the lower back. He said he did not find any evidence of increased tone then he would agree there was evidence of spinal cord compression;

(h)      He said he would have done a neurological exam of the plaintiff but it was not documented. He later said he may not have done an upper extremity neurological exam due to an oversight. It is likely he did not do such an examination;

(i)       He said the results of the lower extremity neurological exam were normal. Though Dr. Watt had earlier found deep tendon brisk reflexes, he believes these reflexes might not be abnormal.

[159]     Dr. O’Farrell conceded that Dr. Sahjpaul’s diagnosis of the C5/6 and C6/7 degeneration was persuasive and that he would defer to Dr. Sahjpaul in regard to that opinion.

[160]     I have concluded that Dr. O’Farrell’s investigation of the plaintiff, his clinical notes taken during his examination of the plaintiff and the differences between his notes and underlying facts in the report were flawed. Most significantly, he did not do an upper body examination of Mr. Chenier and did not observe other symptoms that confirmed a spinal cord compression.

[161]     Dr. O’Farrell’s recent professional activity, in contrast with Dr. Sahjpaul’s practice, persuades me that the opinion of the latter is to be given more weight. Dr. Sahjpaul, as a neurologist, has more current expertise that is focused on the type of spinal injuries suffered by the plaintiff.

[162]     Dr. O’Farrell also confirmed that he would defer to Dr. Sahjpaul’s opinions concerning the plaintiff’s upper spine injury.

[163]     Thus, I conclude that Dr. O’Farrell’s opinions regarding the plaintiff’s low back injury and his upper spine injuries and their connection to his pre-existing degenerative disc condition are not persuasive. Where his opinion conflicts with that of Dr. Sahjpaul, I prefer Dr. Sahjpaul’s opinion.

Nurse Found Liable for "Negligent Walking"

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There is no reason why the principles of negligence can’t apply to a situation where one pedestrian negligently walks into another causing injury.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, demonstrating this.
In today’s case (Faircrest v. Buchanan) the “unintentionally bumped into (the plaintiff) while leaving her office to attend to a patient”.  The Plaintiff fell down and suffered a fractured hip.
The Defendant argued that no liability should flow stating that “a person of ordinary fortitude would not have fallen as a result of the Collision“.  The Court disagreed and found liability could flow from negligent walking.  In doing so Mr. Justice Erhcke provided the following reasons:

[57]         The parties are in agreement that there are four elements to be proved by the plaintiff in an action for negligence, as set out in para. 3 of Mustapha v. Culligan of Canada Ltd., 2008 SCC 27:

[3]        A successful action in negligence requires that the plaintiff demonstrate (1) that the defendant owed him a duty of care; (2) that the defendant’s behaviour breached the standard of care; (3) that the plaintiff sustained damage; and (4) that the damage was caused, in fact and in law, by the defendant’s breach. I shall examine each of these elements of negligence in turn. As I will explain, Mr. Mustapha’s claim fails because he has failed to establish that his damage was caused in law by the defendant’s negligence. In other words, his damage are too remote to allow recovery.

[58]         The first and the third elements are not in issue, since Fraser Health acknowledges that Nurse Buchanan owed the plaintiff a duty of care and that the plaintiff was injured in the Collision. Fraser Health also acknowledges that it is vicariously liable if Nurse Buchanan is found to have been negligent.

[59]         As to the fourth element, Fraser Health contends that even if the plaintiff’s injuries were in fact caused by the Collision, they were too remote to warrant damages, and therefore, legal causation has not been established. Fraser Health submits that a person of ordinary fortitude would not have fallen as a result of the Collision, or if she did, she would not have sustained injury.

[60]         I do not agree. There is no evidence that Ms. Faircrest’s arthritis, age, or stature had anything to do with her sustaining injuries in the Collision. Although she may have walked more slowly than others, that was not a relevant factor in the outcome. It was reasonably foreseeable that if Nurse Buchanan, who weighed 185 lbs., while not watching where she was walking, collided with a female volunteer, that volunteer might fall and suffer physical injuries. The injuries are not too remote to warrant damages, if the standard of care was breached.

[61]         We come then to the third element, breach of the standard of care. The standard of care in the case of collisions between pedestrians was described in this way by Dhillon J. in Mills v. Moberg (1996), 27 B.C.L.R. (3d) 277 (S.C.) at para. 6:

The duty of pedestrians to one another is to act as an ordinary person would in the circumstances, using the degree of care and vigilance which the circumstances and the interests of others using the walkway demand.

[62]         In that case, Dhillon J. found a delivery driver liable in negligence for having knocked over another pedestrian as he walked around the corner of his truck in a mall parking lot, causing the 76-year-old plaintiff to fall and break her hip. She wrote at para. 6:

In this case, the defendant, Moberg, failed to consider the possibility of other pedestrians in the parking lot despite the configuration of the lot which necessitated pedestrians to cross the lot to reach the shops. Given the proximity of the mall to long term care and rehabilitation facilities and given Moberg’s regular presence at the mall, Moberg should have been alert to the presence of pedestrians including disabled persons in the vicinity. He did not look to his right as he quickly rounded the rear of his delivery van to reach the driver’s door. His failure to look for other pedestrians was the cause of the collision.

[63]         In the present case, it is, of course, relevant that Connolly Lodge is a residential mental health facility and that Nurse Buchanan had a duty to react quickly to the disturbance caused by one of the patients. Nevertheless, her quick reaction was no reason to be heedless of other persons standing or walking in the Lodge who might be in her path as she proceeded to attend to the patient. Her failure to notice the presence of the plaintiff in her path caused the Collision.

[64]         I therefore find that Nurse Buchanan was negligent, and that Fraser Health is vicariously liable for her negligence.

"Walk Away" Offer Results in Double Costs After Plaintiff Claim Dismissed

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Reasons for judgement were released today ordering a Plaintiff to pay costs and post offer double costs after having his personal injury claim dismissed at trial.
In today’s case (Johnson v. Jamiesen) the Plaintiff was involved in a 2010 collision.  Fault was disputed.  In the course of the litigation the Defendant made an offer to settle the claim for $0 with both parties bearing their own costs to date.  The Plaintiff proceeded to trial and the claim was dismissed.  In finding that the ‘walk away’ offer ought to have been accepted and awarding double costs Mr. Justice Brown provided the following reasons:

[14]         The plaintiff had in hand the defendant driver’s witness statement when he received the offer to settle. Six months later, the parties conducted examinations for discovery. The only witness called by the plaintiff was his girlfriend. He should have been aware of the reliability and shortcomings in her evidence by then. Further, following examinations for discovery, the plaintiff was positioned to see the perils of his position on liability.

[15]         The defendants characterize their offer as a “walk-a-way” offer. While a nuisance offer may bear no real relationship to a plaintiff’s claim and not constitute an offer reasonably capable of acceptance, the court has recognized a walk-a-away offer may bear a realistic relationship to the plaintiff’s claim, reasonably capable of acceptance and, if rejected, justify an award of double costs, Riley, v. Riley, 2010 BCSC 822. In Riley, the court found the plaintiff possessed all the information the defendant intended to rely on at trial, which in this case, would be the evidence of the defendant driver. There were some potential accident witnesses at the scene potentially available to the plaintiff, but he could not call them because he and his girlfriend chose not to obtain any contact information from them, electing to go to a pub for a beer and to watch the hockey game.

[16]         The weaknesses of the plaintiff’s case on liability were quite apparent, his testimony rife with inconsistencies and improbabilities. I agree with the defendants that the plaintiff should have readily recognized the high risk of dismissal that he faced. I note the offer was open for acceptance any time before 4:00 p.m. on the last business day before commencement of the first day of trial. The long period between the tender of the offer and trial afforded ample time to consider the offer, which I find was one reasonably capable of acceptance.

[17]         See, besides Riley: Henry v. Bennett, 2014 BCSC 1963 at paras. 29 and 30; Houston v. O’Connor, 2011 BCSC 509 at para. 59; Catalyst Paper Corporation v. Companhia de Navegação Norsul, 2009 BCCA 16 [“Catalyst”]; Brooks v. Gilchrist, 2011 BCSC 56 at para. 16; and Bay v. Pasieka, 2014 BCSC 809 at para. 20.

[18]         In Catalyst, Hall J. A. made this useful comment at para. 16:

[16]      It seems to me that the trend of recent authorities is to the effect that the costs rules should be utilized to have a winnowing function in the litigation process. The costs rules require litigants to make careful assessments of the strength or lack thereof of their cases at commencement and throughout the course of litigation. The rules should discourage the continuance of doubtful cases or defences. This of course imposes burdens on counsel to carefully consider the strengths and weaknesses of particular fact situations. Such considerations should, among other things, encourage reasonable settlements.

[19]         I am not aware of any particular financial considerations. The plaintiff has not made submissions on costs.

[20]         Accordingly, the defendants have an order for all costs of the proceedings at Scale B, up to and including May 15, 2012. For all the steps they took in the proceeding after the October 9, 2012 examinations for discovery, they are entitled to double costs.

Visual Vestibular Mismatch Leads to $90,000 Non-Pecuniary Assessment

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Adding to this site’s archived cases addressing visual vestibular mismatch following a vehicle collision, reasons for judgement were released today by the Supreme Court, assessing damages for such an injury.
In today’s case (Miolla v. Fick) the Plaintiff was involved in a modest 2013 rear end collision.  The Defendant admitted fault but argued that given the minor nature of the crash the Plaintiff was not injured.  The Court rejected this argument and concluded the plaintiff suffered from soft tissue injuries and a visual vestibular mismatch which caused a chronic balance problem which largely interfered with the Plaintiff’s ability to work.  In assessing non-pecuniary damages at $90,000 Mr. Justice Myers provided the following reasons:

[30]    Dr. Longridge concluded that Ms. Miolla suffered from vestibular mismatch.  In his direct evidence he briefly described that as disorder where information from the ear and eyes regarding movement fail to gel, which creates a confusion that in turn creates imbalance, nausea, light-headedness and vertigo.  A longer explanation was provided in his report:

Visual Vestibular Mismatch refers to a condition where the patient develops symptoms which are distressing and bothersome. Anyone who has been sitting at a traffic light on an incline and suddenly notices that they are falling back down the incline and rapidly slams their foot on the brake has experienced a situation where a car next to them is in fact moving slowly forward and they misinterpret this and think that they are going backwards. This is a visual vestibular mismatch situation. The individual has had an awareness of visual information misinterpreted into the feeling that they are moving. This is a physiological visual vestibular mismatch. The condition of visual vestibular mismatch which is abnormal or pathological is of similar distressing symptoms induced by a situation where normal people do not get symptoms. Where there is a lot of movement around the individual this causes confusion, distress and dizzy symptoms. The reason for this dizzy symptomatology is that the information from the balance system of the ear, as the patient is moving, does not synchronize or mesh with the information that the patient receives from their own vision resulting in awareness that there is a difference between the two and a sensation of dizziness is produced. Particular situations where this occurs are ones with a lot of movement. Characteristically rippling water and also the standard situation of a lot of movement in a supermarket or shopping mall produces awareness of dizziness. Complaints of dizziness caused by checkered floors, busy carpets or patterned tiles is seen. Dislike of elevators and escalators, which caused dizziness is common. Busy television programs, such as car chases and hockey games cause dizziness. Scrolling a computer causes dizziness. The bright light in these circumstances is frequently complained of. People around the patient are moving relatively indiscriminately and this results in a dizzy sensation.

[31]    He concluded that this was caused by the accident:

Onset of dizziness subsequent to the accident means, in my opinion, that the accident is the [probable] cause. There are measured abnormalities on balance tests. She has an abnormal result on Computerized Dynamic Posturography (CDP), compatible with a disturbance involving the balance system of the inner ear. This is an objective test. She has an abnormal Ocular Vestibular Evoked Myogenic Potentials (OVEMP) test with an abnormality on the left side. This is an objective test. OVEMP measure the macula of the utricle, one of the gravity detecting organs of the inner ear…

[42]    …I accept Dr. Longridge’s report and conclusion.

[61]    A closer case – in fact one remarkably similar to the one at bar – is Moukhine v. Collins, 2012 BSCS 118.  In that case, the 53-year-old plaintiff also suffered visual-vestibular mismatch.  That impaired his ability to work as a computer programmer by 50%.  His previous activity level was curtailed, as was the nature and extent of his outdoor activity level.  Damages were assessed at $90,000.  Based on that, I assess general damages at $90,000.

$85,000 Non-Pecuniary Assessment For Persistent Soft Tissue Injuries and Headaches

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Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and headaches following a collision.
In today’s case (Snidal v. Spires) the Plaintiff, who was 20 at the time, was involved in a 2010 collision in Parksville BC.  The Defendant admitted fault.  The Plaintiff suffered persistent soft tissue injuries and headaches which were partly disabling and not expected to improve.  In assessing non-pecuniary damages at $85,000 Mr. Justice Fitch provided the following reasons:
[3]             The accident caused persistent soft tissue injuries to the plaintiff’s neck, back and right shoulder.  She continues to experience neck, back and shoulder pain – particularly along the top of her right shoulder.  She has suffered from headaches since the accident, some of which are debilitating…

[131]     The plaintiff is a young woman.  More than four years from the date of the accident, she continues to experience fairly constant pain and occasionally debilitating headaches.  Although her symptoms have likely plateaued, they are now chronic in nature and will be a permanent and regular feature of her daily existence.

[132]     The plaintiff is no longer able to enjoy her favourite recreational activities, nor the active lifestyle she once enjoyed.

[133]     She has become more withdrawn.  Her self-esteem and sense of self-worth were seriously compromised in the aftermath of the accident.

[134]     She experienced a major depressive disorder attributable to the accident and will likely experience some residual, but manageable, symptoms of that disorder in the future.

[135]     In all the circumstances of this case, and applying the factors in Stapley v. Hejslet, I consider an award of $85,000 for non-pecuniary damages to be just and appropriate.

Facebook Posts Derail Personal Injury Claim

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Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, rejecting aspects of a personal injury claim in part due to postings from the Plaintiff’s Facebook page.
In today’s case (Tambosso v. Holmes) the Plaintiff was involved in two collisions.   The Plaintiff claimed significant injuries and sued for damages.  Mr. Justice Jenkins accepted the Plaintiff suffered some injury in the collisions but largely rejected the Plaintiff’s claim.  In doing so the Court relied heavily on the Plaintiff’s postings on Facebook  which the Court found were “completely inconsistent with the evidence the plaintiff gave at trial”.  Mr. Justice Jenkins provided the following reasons:

[170]     Throughout her evidence, the plaintiff testified that as a result of the PTSD and stress suffered as a result of the aftermath of the 2008 accident, her life completely changed from that of a vibrant, outgoing, industrious, ambitious, physically active, progressive and healthy young woman to that of a housebound, depressed, lethargic, forgetful, unmotivated woman who is unable to concentrate, cannot work, has friends only on the internet and whose “life sucks”.

[171]     One hundred and ninety-four pages of Facebook entries from her Facebook page posted between May 7, 2007and July, 2011 were entered in evidence following an order for production by Master Tokarek in August 2011. There are extensive status updates, photographs, and other posts to the plaintiff’s Facebook page that at face value appear to directly contradict her evidence regarding her alleged injuries, and her state of mind following the 2008 accident in particular. All of the posts were included in Ex. 1, Tab 1.

[172]     It was submitted in argument that persons posting the events of their life on social media tend to post positive events and activities to portray themselves as “social” and avoid posting negative thoughts, events and news. There is no opinion evidence to support this submission, but I nonetheless approach the Facebook evidence with caution. However, even given potential frailties with this evidence I find there are numerous examples that buttress my findings on the plaintiff’s credibility.

[173]     Examples of postings of the plaintiff on Facebook which conflict with the evidence of the plaintiff are many; I highlight some examples which are included in the Facebook pages found at Ex. 1, Tab 1:

a)    The plaintiff testified that she loved her position as front desk manager at the Summit Lodge and Spa, was performing well and putting in extra hours, was intending to make a career out of work in the hospitality industry and expected to be able to manage the hotel or other hotels in the future. Her  manager for most of her time at the Summit, Ms. Camilla Say, was not so complimentary, saying the plaintiff was “great initially at fulfilling her duties”, started to struggle towards the end of winter as the job was high stress and by the spring of 2008 she “was not enjoying the job” and “was moody, short tempered”. Ms. Say continued that there had been staff complaints, “she was gone at times” and as to whether the plaintiff was management material, Ms. Say’s response was “she was fairly young, not loving the hours, and therefore would say she is not management material”. Facebook postings by the plaintiff reflected the stress of the job, and included posts on February 5, 2008 that she “is feeling over worked and under…”, on February 9, 2008 that she “could duplicate herself so work would be easier…” and on May 16, 2008 that she “is wishing work didn’t interfere with life…” These Facebook postings reflect the evidence of Ms. Say, not the trial evidence of Ms. Tambosso.

Facebook postings indicated that the plaintiff quickly returned to join her friends in social events following the 2008 accident. On July 29, 2008 and August 6, 2008, mere weeks after the 2008 accident, Ms. Tambosso was tagged in photo albums entitled “Kerri’s Stagette” and “Kerri’s Stag Part 2” that depict her drinking with friends and river tubing near Penticton. Similarly, numerous posts from October 2008 indicate the plaintiff eagerly anticipated and attended a Halloween party, including her RSVP message to the event page which stated “Yeah Party! You guys have the best parties. I’ll be there  . . . with bells on!  xoxoxo Sarah”, posts back and forth with friends discussing the upcoming party, and two photo albums posted November 1, 2008 and November 4, 2008 both entitled “Halloween2008” by Adrienne Greenwood depicting the plaintiff dressed in costume at a party with friends. The plaintiff also posted a status update on November 1, 2008 the following day that she “is chillin’ on the home front after a crazy week”. This directly contradicts the plaintiff’s testimony that in the weeks following the 2008 accident “I went to a bad place in my brain”, “that time really sucked” and “I knew something was really wrong.” It also contradicts her evidence to Dr. Rasmussen that she forced herself to attend these events in order to combat feelings of discouragement and withdrawal, and that her enjoyment of these activities was “limited”. She also appears to have attended numerous other events during that time period, but as these are only evidenced by confirmed Facebook event RSVPs and status updates rather than photographs, I will not place as much weight on those events.

b)    Postings by the plaintiff to her Facebook page continued through 2009 however indicated a much less active social life. The plaintiff acknowledged it was during a period when she was having a very difficult pregnancy which, from the plaintiff’s description, did interfere with her social life, and was also the time of the alleged assault by Mr. Dyer following which the police were involved and soon thereafter the engagement and close relationship between them ended. It strikes me as odd that the plaintiff’s social media activity during this time seems to directly correspond with her reported life circumstances and state of mind, ie. she was having a difficult time so she was less active on Facebook, but her Facebook activity did not appear to diminish immediately following the 2008 accident, despite her testimony that this was a very dark time in her life and the evidence that this was the triggering incident for the PTSD that was diagnosed by the various experts.

c)     The plaintiff’s Facebook posts continued through 2010 and 2011with somewhat less frequency and enthusiasm than the 2008 posts, though it is natural that a person raising a small child would have to make adjustments to her social activities compared to the extent of her social life prior to her pregnancy. What is notable is that the plaintiff still continued to have relatively numerous posts from friends and photos of events she attended, and there was no notable change in the Facebook activity or posts immediately following the 2010 accident on September 3. I can only make conjectural conclusions from this evidence, so I will not place significant weight on the 2010 posts, but I nonetheless note the absence of a change to her social media behaviour following the 2010 accident.

[174]     I conclude that based on this Facebook evidence, in particular the photos of continued attendance at social events and posts from friends, that the plaintiff had a very active social life following the 2008 and 2010 accidents. The social life portrayed by her Facebook profile is consistent with the social life of someone who went through three engagements, the birth of a child, and a marriage. It is completely inconsistent with the evidence the plaintiff gave at trial and to the experts that she was a “homebody” whose “life sucked” and “only had friends on the internet”.

Trial Venue Not Changed Due to "Overwhelming Cost of Expert Evidence"

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a change of venue application due to the ‘overwhelming cost of expert evidence‘.
In today’s case (Gaebel v. Lipka) the Plaintiff was injured in a 2011 collision which occurred in Powell River.  Both the Plaintiff, Defendant and some lay witnesses resided in Powell River.  The trial was scheduled to take place in Vancouver where the majority of expert witnesses involved in the case practiced.  The Defendant argued the trial ought to be moved to Powell River given the location of the majority of lay witnesses.  Master Muir dismissed the application citing a concern of the cost of producing experts to attend the out of town location.  In dismissing the application the Court provided the following reasons:

[9]             As I said, the plaintiff and defendants reside in Powell River. One of the employers resides in Powell River.

[10]         However, there are other witnesses that reside in Nanaimo, Campbell River, Langley, and then there is the question, of course, of experts. The majority of the experts, if not all of them, will be attending from Vancouver…

[14]         The costs of having experts travel to give evidence, even if they are willing or available to do so, is considerably greater than that of lay witnesses.

[15]         There was an issue as to the appropriateness of a jury trial given that the plaintiff resides in Powell River. The plaintiff was concerned that he would not be able to get a jury that was unfamiliar and unbiased with regard to the events in issue.

[16]         The defendants take that by the horns and advise that they will not have this matter tried as a jury trial if it proceeds in Powell River. So that is no longer a consideration.

[17]         The primary position advanced by the defendants was that the costs of the lay witnesses and the convenience to the plaintiff’s employer and others coming from Powell River overwhelmingly overbalance the plaintiff’s right to have the trial in Vancouver.

[18]         The plaintiff disputed that and, as I noted, provided evidence of where other witnesses actually reside. It appears that there are a number of witnesses who, although they may work occasionally in Powell River, do not reside there.

[19]         Given the overwhelming cost of expert evidence, it is my view that the test has not been met and the application is therefore denied.

Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 112 Comments on Responsive Report Rule "Is Not a Licence" For Failing to Prepare Expert Evidence

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, criticizing and restricting the practice of allowing late defense medical examinations in the guise of obtaining ‘responsive’ reports.
In last week’s case (Timar v. Barson) the Plaintiff was injured in a 2011 collision and sued for damages.  The alleged injuries included a concussion.  In the course of the lawsuit the Plaintiff served a psychologists report which found the plaintiff suffered from a variety of cognitive issues.  As the 84 day deadline approached the Plaintiff served the balance of his reports which included a psychiatric opinion that the Plaintiff suffered from an ongoing concussive injury from the collision.  The Defendant applied for an independent medical examination beyond the 84 day deadline arguing they needed a responsive opinion in the face of these new reports.  Mr. Justice Smith disagreed and in doing so provided the following reasons criticizing the ‘wait and see’ approach in defendant’s exercising their rights for independent medical exams:

[19]         Rule 11-6(4) establishes a notice requirement for responsive evidence, but it does not exempt any party from the basic notice requirement in R. 11-6(3). In other words, it is not a licence for any party to wait until they have seen the other’s expert reports before deciding what expert evidence they need to obtain or rely on. Where each party has properly prepared its case and used the rights given by the Rules to discover the other party’s, responsive reports under R. 11-6(4) should rarely be necessary and IME’s for the purpose of preparing such reports should be rarer still.

[20]         A party seeking an IME after expiry of the deadline in R. 11-6(3) must, as stated in Luedecke,  satisfy the court that the examination is necessary to properly respond to an expert report served by the other party and not simply to respond to the subject matter of the plaintiff’s case.

[21]         However, other factors beyond the meeting of that evidentiary threshold must be considered. The principle one that emerges from virtually all the cases is the extent to which the party seeking the examination can claim to be truly surprised by the expert evidence served by the other party: Jackson at para. 27; Compton v. Vale (4 June 2014), Kelowna M95787  at para. 11 (B.C.S.C.). Defendants who delay obtaining or serving expert evidence until after the plaintiff’s evidence is received, then attempt to introduce all of their expert evidence as response, do so at their peril: Crane v. Lee, 2011 BCSC 898 at para. 22; Gregorich v. Gregorich (16 December 2011), Victoria 09-4160 at para. 11 (B.C.S.C.)…

[31]         A defendant in a personal injury action must therefore know that the plaintiff will have to rely on medical evidence if the matter proceeds to trial. Knowing that, the defendant must consider whether an IME is required in order to obtain a report that can be served at least 84 days before trial pursuant to R. 11-6(3). In order to determine that and to identify the type of medical expert to involve, the defendant must determine what the plaintiff is saying about his or her condition. An examination for discovery is the obvious, most effective and most important way to do that.

[32]         The defendant in this case chose not to exercise its rights under the Rules. It did not conduct an examination for discovery and made no effort to obtain a timely IME. In the absence of such efforts, I must hold that the Master erred in permitting the defendant to use R. 11-6(4) as a means of obtaining its first medical evidence. In the limited time she had to deal with the application, the Master failed to fully and properly consider the limited purpose of R. 11-6(4) and its interaction with other rules as they affect actions of this kind.