Uncategorized – Page 36

Privacy A Rare Protection For Personal Injury Plaintiffs

Written by admin on November 18, 2014. Posted in ICBC Privacy Issues, Uncategorized. 50 Comments on Privacy A Rare Protection For Personal Injury Plaintiffs

When a personal injury claim proceeds to trial oftentimes publicly available reasons for judgement are published which are accessible by all. These frequently reveal details about a Plaintiff’s health, limitations, injuries and other personal details. Reasons for judgement were released discussing if a Plaintiff should be granted anonymity in published reasons for judgement. In short, the Court held that absent exceptional circumstances, such privacy protections should not be granted.
In the recent case (Davidge v. Fairholm) the Plaintiff, who was injured in a collision, asked for anonymity on the basis that “ publishing the plaintiff’s name might hurt him in his employment, as his employer might treat him differently after learning about his medical issues. This is because the plaintiff works in employment that involves some physical stress on his body”. ICBC objected to the reqest for privacy. In denying the Plaintiff’s request Madam Justice Griffin provided the following reasons:

[12] The law is clear that anonymizing a judgment by substituting initials for a litigant’s name should only occur in rare circumstances, such as where it is necessary to protect a vulnerable litigant or a vulnerable person who can be identified through the litigant.

[13] I find that there is nothing exceptional about this case which requires a publication ban on the name of the plaintiff. There is no more of an invasion of privacy in this case than in an ordinary case and the plaintiff is not a vulnerable person.

[14] I also note that if publication bans were a matter of course in personal injury trials this could negatively impact the administration of justice. There are sound reasons for publishing the names of litigants. One benefit of the open court principle is that it brings home to a person who testifies the importance of telling the truth and increases the potential consequences of failing to do so. This is one reason the Third Party’s opposition to such an application is an important factor to weigh.

[15] The application to anonymize the judgment is therefore refused.

BC Court of Appeal – Interest Disbursements Not Recoverable in Injury Litigation

Written by admin on November 17, 2014. Posted in Uncategorized.

Important reasons for judgement were released today by the BC Court of Appeal (MacKenzie v. Rogalasky) addressing an unsettled area of law, whether interest charges on disbursements incurred during the prosecution of an injury lawsuit could be recovered. In short BC’s highest court ruled they cannot.
In reaching this conclusion the Court provided the following reasons:

[78] In my opinion, the various iterations of the rule set out above permitting recovery of expenses focuses most naturally on the exigencies inherent in the particular litigation rather than capturing expenses arising from the financial circumstances or other choices of a party. Embedded in the rule is the requirement for a causal connection between the issues in the case and the expense incurred to prove or disprove them.

[79] The rule, in its current form, permits the recovery of “disbursements … incurred in the conduct of the proceeding”. In my view, quite apart from the language “incurred in the conduct of the proceeding” the term “disbursement”, when used in the context of a costs rule that relates to the taxation of costs in particular litigation, does contain limits that narrow its potential broad applicability. It appears to me that the purpose of permitting the recovery of disbursements in the context of a costs regime is to permit the recovery of those expenses that arise inherently and directly from the issues in the case which relate, as the appellants suggest, to the direction, management, or control of litigation and which pay for materials and services used to prove a claim or defence. These expenses arise directly from the nature and conduct of the allegations in a proceeding. By contrast, interest expenses do not arise from the nature of the allegations or the conduct of proceedings, they arise from unrelated causes including the financial circumstances of a party. In my view, as such, they do not fall within the meaning of the word “disbursements” in the context of a costs rule.

[80] It will be apparent that the conclusion I have reached does not depend on limiting the applicability of the word “disbursements” by reference to the phrase “incurred in the conduct of the proceeding”. I consider that the meaning of the words “disbursement” or “expense” has always excluded out-of-pocket interest expenses. The addition of the phrase “incurred in the conduct of the proceeding” in the rule in 1990 did not narrow or change the meaning of the word “disbursement” or otherwise limit its application. Rather, the phrase reinforces and confirms what has always been the case. To be recoverable a disbursement must arise directly from the exigencies of the proceeding and relate directly to the management and proof of allegations, facts and issues in litigation, not from other sources. In my view, that is what is captured by the phrase “the conduct of the proceeding”.

[81] In my opinion, this interpretation of the rule flows naturally from the purposes of a costs regime and the guidance provided on that subject by the Supreme Court of Canada, most particularly in Walker. Several points emerge which assist in interpreting the rule. The first is that a costs regime serves multiple functions, only one of which is indemnification. Even in respect of that function, the costs regime provides only partial, and not full, indemnity to a successful party. Accordingly, one is not compelled to conclude that interest expenses must be recoverable because the purpose of the rule is to make a successful party whole. To the contrary, partial indemnification underlies both the recovery of costs on a tariff and disbursements (because the reasonable amount awarded may not fully indemnify the cost of necessary or proper disbursements).

[82] Second, within the context of partial indemnification, costs awards should be predictable and consistent across similar cases. Only if this is the case can parties accurately assess the risks of engaging in litigation and make rational decisions about settling or prosecuting the case. Recognizing interest expenses as recoverable disbursements is inconsistent with this objective because exposure to costs and disbursements would not depend on the nature of the case itself, but on the particular circumstances of a party. These circumstances may well involve the relationship between the party and counsel and be matters the opposing party has no right to know.

[83] Third, although costs regimes may affect access to justice, the Supreme Court has made it clear that costs are not the means of securing access to justice, except in exceptional circumstances. Of this more below.

[84] Finally, costs awards relate to the particular case and are made as between the successful and the unsuccessful parties. On the facts of these appeals, it seems reasonable to infer that recognizing interest as an expense would lead to a transfer of resources between classes of parties in which unsuccessful defendants are exposed to the risks of paying high interest rates designed to pay for the cost of lending money, not just to the successful party in the case but other plaintiffs who receive financing but may not recover moneys to pay for their loans…

[93] I conclude that an out-of-pocket interest expense incurred to finance disbursements is not a recoverable disbursement under Rule 14-1(5). I acknowledge that this result is likely inconsistent with the position in New Brunswick and possibly Ontario. To the extent that this is the case, I am respectfully, and for the reasons set out above, unable to agree with the conclusion those courts reached.

The Big 2000!

Written by admin on November 13, 2014. Posted in Uncategorized.

While writing my last post I realized this site has passed the 2,000 article benchmark. Thank you to all my readers who make this ongoing effort worthwhile!

Clinical Record Disclosure Thwarts Adverse Inference Request

Written by admin on November 13, 2014. Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, placing great weight on clinical record disclosure in denying a request for an adverse inference.
In the recent case (Beggs v. Stone) the Plaintiff was involved in a 2009 collision caused by the Defendant. The Plaintiff suffered a variety of soft tissue injuries with accompanying psychological difficulties which rendered her disabled. In the course of the trial the Plaintiff did not call a variety of treating physicians including one who treated her before and shortly after the collision and treating psychologists. In declining to draw an adverse inference Mr. Justice Smith placed ‘particular emphasis‘ on the fact that fulsome disclosure of these treating physicians records was made. In finding no inference should be made the Court provided the following reasons:

[22] Counsel for the defence seeks an adverse inference from the plaintiff’s failure to call the family physician who treated her before and in the year following the accident and more particularly the psychologists who treated her both here and in Winnipeg after the accident. The factors for drawing an adverse inference are set out in Buksh v. Miles, 2008 BCCA 318, at para. 35. These include the evidence before the court, the explanations for not calling the witness, the nature of the evidence that could be provided, the extent of disclosure of the witness’s clinical notes and the circumstances of the trial.

[23] In declining to draw an adverse inference, I place particular emphasis on the fact that the clinical records of all of these professionals were disclosed to defence counsel and were reviewed by all the experts who gave their opinions in part based upon those records. The plaintiff’s pre-accident condition and post-accident progress are well documented, and there is nothing to suggest that there is anything in those records that contradicts anything that the doctors who have testified have stated.

Joint TortFeasor Payments Fully Deductible From Lessor's Vicarious Liability Obligations

Written by admin on November 7, 2014. Posted in Uncategorized.

BC’s Motor Vehicle Act and Insurance (Vehicle) Act limit the vicarious liability of vehicle lessor’s to $1 million. Reasons for judgement were released this week by the BC Court of Appeal clarifying this obligation when a personal injury claim is worth over $1 million and other responsible tort feasors have paid the first $1 million in damages. In short, the BC Court of Appeal held that once payments from other tortfeasor’s are made up to $1 million lessor liability is fully extinguished.
In this week’s case (Stroszyn v. Mistui Sumitomo Insurance Company Limited) the Plaintiff was involved in a serious motor vehicle collision and settled his injury claim for $1.6 million. ICBC, who insured the responsible driver, paid the first $1 million being the full extent of the Third Party insurance available. The Plaintiff sought to collect the balance from the lessor, Honda Finance Inc., who was the registered owner of the Defendant’s vehicle and vicariously liable for the tort.
The BC Court of Appeal held that ICBC’s payment fully satisfied any exposure Honda had. In reaching this conclusion and clarifying the protections given to vehicel lessor’s in BC the Court provided the following reasons:

[24] I see no basis in law for considering only a portion of the ICBC payment to have been made on behalf of Honda. In my view, each of the insureds in this case can regard the whole of the payment made by ICBC to have been made on his, her or its behalf and to have reduced its liability to the petitioner to the full extent of the payment. In the absence of a statutory provision limiting the lessor’s liability, all three would remain jointly and severally liable for the balance of the petitioner’s damages. However, the I(V)A having limited the lessor’s liability to $1 million, it is my view that the payment of $1 million to the petitioner on behalf of all insureds, including the lessor, completely discharges the lessor’s liability and leaves the other defendants jointly and severally liable for the balance of the damages.

[25] This must certainly be the case where the liability of Ms. Chen and Honda is entirely vicarious. Vicarious liability is discharged to the extent of any payment made in satisfaction of a plaintiff’s claim for damages. This is not a case where liability can be apportioned by degrees of blameworthiness, or severed.

BC Ethics Committee Clarifies Duties for Law Firms That Lend Clients Money

Written by admin on October 30, 2014. Posted in Uncategorized.

When advancing a personal injury lawsuit it is common for BC lawfirms to fund the lawsuit related expenses on behalf of clients (disbursements such as court filing fees, the cost associated with ordering medical records and expert reports). Today the BC Law Society’s Ethics Committee provided an opinion that this practice is acceptable with certain conditions, however, if a lawfirm funds expenses beyond disbursements (ie clients medical costs, client out of pocket expenses etc) they must do so on an interest free basis unless they send the clients for independent legal advice first. Below the full Ethics Opinion can be found on page 12 of this link .
For Disbursement funding with interest charges to be Ethical the lawyer must
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge
If the funds advanced are for anything other than disbursements and interest is charged the requirements are greater and are as follows:
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge after receiving independent legal advice
4. be in compliance with the BC Code rule 3.4-26.1, which prevents a lawyer from advancing funds to a client if there is a substantial risk that the lawyer’s loyalty to or representation of the client would be materially and adversely affected by te lawyer’s relationship with the client or interests in the client or the subject matter of the legal services.

Deep Sea Terminal Negligent After Failing To Warn User Of Automated Gangway

Written by admin on October 24, 2014. Posted in Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding Prince Rupert Grain Ltd. (PRG), who operated a deep sea terminal, negligent for failing to meaningfully warn the Plaintiff about an automated gangway.
In the recent case (Ranjabar v. Islamic Republic of Iran Shipping Lines) the Plaintiff was a cook on a foreign commercial vessel. It docked at the Defendants deep sea terminal. After a brief time at shore, as the Plaintiff was attempting to board the vessel, the automated gangway lifted and the Plaintiff fell onto the ship below fracturing his femur.
The Defendant PRG was found liable with the court finding the gangway was “both unusual and dangerous“. The court noted that the English language warning signs were insufficient notice of this danger in the circumstances where occupants of foreign vessels were expected to encounter it.
At paragraphs 81-101 the Court sets out a lengthy list of applicable legal principles in occupiers liability cases concerning the use of a gangway. In finding PRG liable Madam Justice Dillon provided the following reasons:
[104]     Did the gangway pose an unusual danger? Yes, it did. The automatic gangway was both unusual and dangerous. It was unusual because none of the seamen who testified, including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all of their combined years at sea around the world. Usually, a ship (and certainly the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was continuously monitored and operated manually. Based upon this evidence, it is concluded that the average crew member would not have expected the gangway to rise automatically, especially with someone on it. Salmannia thought that “automatic” meant that the ladder remained at all times on the ship deck. The alarm cycle and sequence before lifting of the gangway was both unusual and dangerous if not known. None of PRG’s personnel who testified could interpret the record of the alarm sequence exactly and could not explain why or when the sequence was altered from the original operations manual. It was not obviously visually apparent to either Ranjbar or to Salmannia that the gangway automatically lifted…
[107]     PRG acknowledged this danger by placing the signs and using the horn to warn of danger from movement of the automatic gangway if someone was on it. Whether they were adequate is another question. The assistant maintenance superintendent for the terminal admitted that the gangway was dangerous, especially if one was on the ladder when it lifted. He had never attempted to experience the ladder when the gangway lifted because of the danger…
[113]     Did the failure of PRG to adequately warn of the danger cause Ranjbar to fall from the ladder? The answer is yes. If Ranjbar had known that the gangway would lift automatically, raising the stepladder off of the deck of the ship, he would not have waited while he threw down the backpack to Heidar and then proceed down the ladder. Heidar did not change his conduct as a result of the signs or horn, indicating that he, too, did not appreciate the danger. When the gangway started to lift, Ranjbar did not know what was happening and did not know what to do. Even if he had seen them, the warning signs were inadequate to transmit the danger to him. Ranjbar was aware of dangers generally at the terminal and took care, but relied upon others to inform him about specific dangers. He was a new visitor to this terminal and was given a security pass, but was not told anything about this gangway. The nature of the gangway as automatically lifting regardless that someone was on it was not obvious. It cannot be said in all of the circumstances that the plaintiff’s misunderstanding of the signs and horn was the cause of his injury…
[117]     In conclusion, following careful consideration of all of the facts and the guidance of the law, PRG is 100% liable for the injuries caused to the plaintiff.

"Short Fuse" Formal Settlement Offer Triggers Double Costs

Written by admin on October 22, 2014. Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 49 Comments on "Short Fuse" Formal Settlement Offer Triggers Double Costs

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages. The claim was ultimately dismissed with the Plaintiff being at fault for the crash. Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window. Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer. In addressing its short lifespan not being a barrier the Court provided the following reasons:

[41] I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation. The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether. Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award. All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.

[42] With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident. Relatively little is known about Mr. Henry’s specific financial circumstances. Based on the evidence at trial, it is reasonable to infer that his financial situation is modest. However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.

[43] The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.

Court Criticizes Doctor As Being "An Advocate For ICBC"

Written by admin on October 17, 2014. Posted in Uncategorized. 51 Comments on Court Criticizes Doctor As Being "An Advocate For ICBC"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.
In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision. Fault was admitted. The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities. ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms. In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:

[124] ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial. Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him. He characterized the symptoms as subjective but did not offer a reason to believe they were not real. He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125] Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126] However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident. This opinion was offered even though it was not responsive to the question being asked, and was not in his report. I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127] Dr. Sovio’s off-hand opinion in relation to causation was not well explained. From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record). This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later.

[128] Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time.

[129] Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain. According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields. If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.

[130] In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work. Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”. In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131] Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident. It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.

[132] Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning. He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133] Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial. He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job. When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding.

[134] In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.

Court of Appeal Discusses BC Apology Act

Written by admin on October 7, 2014. Posted in Uncategorized. 47 Comments on Court of Appeal Discusses BC Apology Act

In the first case that I’m aware from the BC Court of Appeal discussing BC’s Apology Act, reasons for judgement were released today addressing this statute in the face of post collision conduct.
In today’s case (Vance v. Cartwright) the Plaintiff was found fully at fault following motorcycle/vehicle collision. The Plaintiff appealed arguing the trial judge erred in allowing an apology into evidence. The BC Court of Appeal upheld the trial judgement finding the trial judge did not place any weight on the Plaintiff’s post crash apology in the reasons underlying the claims dismissal. In commenting on BC’s Apology Act the Court of Appeal provided the following reasons:

[5] Section 1 of the Act defines “apology” as follows:

“apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

[6] Section 2 provides:

2(1) An apology made by or on behalf of a person in connection with any matter

(a) does not constitute an express or implied admission of fault or liability by the person in connection with that matter,

…

(d) must not be taken into account in any determination of fault or liability in connection with that matter.

(2) Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

[7] It is contended that Mr. Vance’s statement that he was sorry and that the accident was all his fault, as well as his later payment of $1,000, constituted an apology or apologies as defined by the Act which the judge took into account in determining fault.

[8] Accepting for present purposes that what Mr. Vance said and did amounts to an apology as defined, I do not consider the judge can be said to have taken it into account in the sense of treating it as an admission or acknowledgement of fault. His clear purpose for referring to what was said was only to explain why no photograph of the position of Ms. Cartwright’s vehicle had been taken to establish where it had been stopped when Mr. Vance crashed into its left rear fender.

[9] Nowhere in his reasons does the judge even suggest he was relying on what Mr. Vance said or did after the accident as the basis of finding him at fault. His reasoning is all based on the evidence and his findings of what occurred before the collision – speed, distance, line of sight, and the conduct of Mr. Vance and Ms. Cartwright.

[10] Significance is attached to the judge having said Mr. Vance was fearful and not thinking clearly following the accident and that his behavior was nonetheless remarkable, not consistent with someone whose life had been put in jeopardy by the actions of another. But that appears to me to be little more than a comment on his confused state of mind following the accident. If anything, the judge appears to have been discounting the significance of what Mr. Vance said and did. In any event, it is not indicative of the judge having wrongfully relied on, or taken into account, anything that occurred after the accident to find Mr. Vance at fault: quite the contrary.

[11] I conclude the judge has not been shown to have found Mr. Vance to be solely at fault for the accident in any way that would offend the provisions of the Act.