Yesterday I had the pleasure of being interviewed by CBC Radio’s Jeremy Allingham on the topic of expert witness advocacy in personal injury lawsuits.
For those visiting this site for the first time welcome! If you are looking for more information on this topic you can click here to access my archived posts detailing judicial criticism of expert witness advocacy in the BC Supreme Court.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for facial scars following a tragic motor vehicle collision.
In today’s case (Boparai v. Boparai Estate) the Plaintiff was involved in a serious collision when he was 8. He was a passenger in a vehicle which crashed and killed his mother and twin brother. The Plaintiff suffered relatively minor soft tissue injuries and serious facial scarring. In addressing non-pecuniary damages for these physical injuries Mr. Justice Schultes provided the following reasons:
[71] To summarize the physical injuries and their consequences, at a vulnerable age Mr. Boparai received several serious facial scars from this accident. He then had to endure numerous uncomfortable procedures to reduce their visibility, without complete success.
[72] The scars have had a significant influence on his life to this point. Although I agree that Dr. Rai has been able to improve them markedly from their original state (and there was an additional surgery planned to try to improve them further), the reality is that some degree of visible scarring will be permanent.
[73] As significant as the scars themselves were, the self-consciousness and embarrassment that they caused in Mr. Boparai as he was growing up were equally damaging, making his schooling and social development much more difficult. I accept that he has tried to avoid social interaction because of these feelings, which were directly caused by the physical injuries.
[74] That said, and without minimizing the continuing visibility of some of Mr. Boparai’s scars or the way that they make him feel about himself, I should say that to an objective observer they are not shocking or disturbing, and a distinction should be drawn between his situation and that of very severely disfigured accident victims, whose every moment in public is a source of compassion or discomfort for observers.
[75] The soft-tissue injuries that he suffered, mainly to his right leg, were much less serious than the scarring. While there is no reason to doubt his assertion that the leg injury kept him out of sports for several years and out of physical education class until Grade 10, I think it would be unsafe to conclude, in the absence of any evidence of ongoing treatment, that it was a source of major discomfort after the last visit to his doctor in relation to it in July 2003, about four years on from the accident…
84] Taking into account the relevant aspects of the injuries that I have described, and receiving guidance from the cases without following them slavishly, I award Mr. Boparai $100,000 in non-pecuniary damages for his soft-tissue injuries and facial scarring.
Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, with critical comments of an orthopaedic surgeon frequently hired by ICBC.
In today’s case (Hay v. Benzer) the Plaintiff was involved in a pedestrian/vehicle collision in 2008. ICBC had the Plaintiff assessed by a orthopaedic surgeon who largely limited the connection between the collision and the Plaintiff’s symptoms. The Court placed “very little weight” on this evidence and in doing so Mr. Justice Cole provided the following comments:
[13] At the request of ICBC she saw Dr. O’Farrell on July 28, 2009. He is an orthopaedic surgeon. He does a significant amount of work for ICBC and appeared to me to be more of an advocate than an independent professional. He found that the plaintiff would not have any long-term effects from the motor vehicle accident. He had documents only from a physiotherapist dated June 16, 2009. Dr. O’Farrell did admit that if pain was still present two and a half years after the accident that it would most likely be a long-term or permanent pain. Dr. O’Farrell did not produce any notes of his assessment claiming they were most likely in another file. I give Dr. O’Farrell’s evidence very little weight.
Update – an appeal of this decision was dismissed however the BC Court of Appeal noted that the trial judge erred in his interpretation of s. 101 of the Regulation in concluding that if ICBC is to rely on s. 96(f) to reject a claim for benefits, it must do so on the basis of evidence obtained before the expiry of the 60-day deadline.
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, holding that ICBC cannot deny Part 7 benefits based on speculation that a pre-existing condition is causing the injury in question absent evidence justifying this position obtained within 60 days.
In today’s case (Kozhikhov v. ICBC) the Plaintiff submitted over $10,000 in medical treatment expenses which ICBC refused to pay. ICBC relied on s. 96(f) of the Regulations which excludes treatments for conditions caused by “sickness and disease” unrelated to the collision. ICBC did not have evidence justifying this position, at least not in the 60 days following the submitted claim. In holding that ICBC is obliged to pay the Part 7 benefits in these circumstances Mr. Justice Smith provided the following reasons:
[19] The benefits claimed in this case are subject to s. 101(b). The 60 day period for payment allows ICBC the opportunity to review and investigate the claim. Obviously, it does not give sufficient time for the extensive investigation the corporation may undertake when defending its other insured–the allegedly at fault motorist–in the tort claim, but that is consistent with summary nature of the claim and the relaxed standard of proof required of the plaintiff.
[20] ICBC relies on s. 96(f) of the Regulation, which reads:
The corporation is not liable to pay benefits under this Part in respect of the injury or death of a person
(f) whose injury or death is caused, directly or indirectly, by sickness or disease, unless the sickness or disease was contracted as a direct result of an accident for which benefits are provided under this Part.
[am. B.C. Regs. 379/85, ss. 36, 37; 449/88, s. 17.]
[21] Section 96(f) must be read in conjunction with s. 101. If the plaintiff’s injury is caused by the sickness or disease referred to in s. 101, benefits are not payable. But in the absence of evidence that s. 96(f) applies, ICBC must pay benefits within 60 days after it receives proof of the claim.
[22] In other words, if ICBC is to reject a claim for specific benefits under s. 96(f), it must do so on the basis of evidence obtained before the expiry of the 60 day deadline. In cannot use evidence obtained long after the fact to justify a failure to comply with s. 101.
Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing liability following a collision with a moose in Northern BC.
In today’s case (Knight v. Knight) the Defendant collided with a moose causing catastrophic and disabling injuries to his spouse who was a passenger in the vehicle. The Defendant argued he was not at fault as he was not speeding and had little time to react. Mr. Justice Sewell rejected this argument and found him fully at fault. In doing so the Court adopted ICBC’s “Learn to Drive Smart” manual as being relevant in assessing the standard of care and provided the following reasons:
[44] In this case, Mr. Knight’s evidence is that he was driving at the posted speed limit, was looking straight ahead while driving because of the oncoming headlights of the Thomas vehicle and took no action when he noticed those headlights black out. Mr. Knight was aware that there were signs warning of the risk of moose being present on the highway and had on an earlier occasion seen a moose on Highway 37, albeit closer to Terrace. He was also aware that the risk of a moose being present was increased at dusk and that moose were more likely to be present during the rutting season, which includes October. There would be a minimal burden imposed on the defendant from driving more slowly. The only result of doing so would have been that he would have arrived at his destination a few minutes later than he would have if he was driving at the posted speed. There can be no doubt that a reasonable person living in Northern British Columbia would have been aware of the grave consequences of colliding with a moose at highway speed.
[45] With respect to the standard of care, the Insurance Corporation of British Columbia’s Learn to Drive Smart Manual states at page 129:
Strategies: watching for animals
To help prevent a collision with an animal:
Scan the sides of the roadway ahead for animals
Watch for animal crossing signs when driving through farming or wooded areas. Slow down in these areas.
Be extra cautious at dusk and dawn. This is when animals move around to feed, and it is also harder for you to see them at these times.
Look for sudden, unusual spots of light on the roadway at night. This may be the reflection of your headlights off an animal’s eyes.
Remember that wild animals often move in herds. If you see one animal, there may be more.
[46] I consider that the recommendations contained in the Driver’s Manual to be relevant in determining whether Mr. Knight met the required standard of care in this case.
[47] In his evidence and examination for discovery, Mr. Knight admitted that he took none of the precautions recommended above. I am aware that I must be cautious about admissions made by Mr. Knight in this case given the fact that his wife is the plaintiff and that he therefore stands to benefit from an award in her favour. However, taking into account the whole of his evidence, his demeanor when giving evidence and the direct manner in which he answered questions put to him, I have no reason to believe that he was attempting to deceive me. Mr. Thomas’ estimate of the speed of the Knight vehicle was consistent with Mr. Knight’s evidence.
[48] I conclude that Mr. Knight was operating his vehicle in a negligent manner on the night of October 22, 2008. I find that given the time of the year and the time of day and the presence of moose warnings signs on Highway 37, Mr. Knight was negligent in failing to slow his vehicle and in failing to take any extra precautions to keep a look out for the presence of moose on or near the highway.
[49] I also find that he was negligent when he failed to immediately slow his vehicle when he observed something crossing in front of the headlights of Mr. Thomas’s oncoming truck.
[50] In my view a reasonable person in Mr. Knight’s position would have immediately taken steps to slow his vehicle when he saw the headlights of the oncoming vehicle black out. I find that Mr. Knight was aware that something was obstructing the lights of the oncoming vehicle. Given the other factors I have already outlined – the warning that moose might be present on the highway, the time of day, and the fact that October is in the rutting season when moose are more likely to be present – I conclude that a reasonable driver would have realized that there was a material risk that it was an animal that was obstructing the lights and would immediately have applied his brakes and slowed his vehicle until he had ascertained what was causing the obstruction. I find that it was negligent of Mr. Knight not do so.
After the conclusion of a personal injury trial it can take several weeks if not months before judgement is granted. If relevant developments occur during this time the Court has discretion to re-open the trial. Reasons for judgement were released today by the BC Supreme Court, Kamloops Registry, canvassing this area of the law.
In today’s case (Miley v. Abulaban) the Plaintiff sued for damages as a result of personal injuries. 42 days after the Defendant closed their case the Plaintiff sought to introduce fresh evidence that the Plaintiff was fired from his employment. Despite the Defendant’s objections the Court allowed the evidence to be introduced and in doing so Madam Justice Hyslop provided the following reasons:
[8] The plaintiff and defendants agree as to the law for the introduction of fresh evidence. The law is as stated by Madam Justice Satanove in Inmet Mining Corp. [v.] Homestake Canada Inc., 2002 BCSC 681, as follows:
[5] The principles of law governing when a trial judge may re-open a case after judgment has been rendered, but before the order has been entered, has been discussed by our courts in a number of decisions. I have endeavoured to consolidate the applicable principles as follows:
1. A trial judge has the unfettered discretion to re-open a case before the entry of the order, but the discretion must be exercised judicially and sparingly. (Sykes v Sykes (1995), 6 B.C.L.R. (3d) 296 (C.A.)).
2. The purpose of the discretion to re-open is not intended to be an alternative method of appeal. (Cheema v. Cheema (2001), 89 B.C.L.R. (3d) 179 (S.C.)).
3. Filing of a notice of appeal does not remove the discretion of a trial judge when a factual error has been identified (my emphasis). (Banyay v. Actton Petroleum Sales Ltd. (1996), 17 B.C.L.R. (3d) 216 (C.A.)).
4. The discretion may be properly exercised where the trial judge is satisfied that the original judgment is in error because it overlooked or misconstrued material evidence or misapplied the law. (Clayton v. British American Securities Ltd., [1934] 3 W.W.R. 257 (B.C.C.A.)).
5. It is not a proper basis for exercising the discretion if the applicant merely advances an alternative argument which could easily have been advanced at trial. (Cheema v.Cheema; Sykes v. Sykes). Where a court of competent jurisdiction has adjudicated upon a matter it will not (except under exceptional circumstances) re-open the same subject of litigation in respect of matters which might have been brought forward as part of the subject in contest, but were not. (Maynard v. Maynard, [1951] S.C.R. 346; Angle v. Canada (Ministry of National Revenue), [1975] 2 S.C.R. 248).
6. New evidence is not an essential prerequisite to exercising the discretion. (Sykes v. Sykes).
[9] Mr. Justice Ehrcke stated in Zhu v. Li, 2007 BCSC 1467, at para. 14:
The principles governing an application to adduce fresh evidence on an appeal are well-known. They were summarized succinctly by McIntyre J. in Palmer and Palmer v. The Queen, [1980] 1 S.C.R. 759 at p. 775:
(1) The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen, [1964] S.C.R. 484.
(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial;
(3) The evidence must be credible in the sense that it is reasonably capable of belief, and
(4) It must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.
[10] The plaintiff offered to be examined by the defendants on this matter and the defendants have chosen not to do so. I see no purpose in the defendants pursuing this course of action as Mr. Miley may not have new employment and this would cause delay
[11] I must say that it is not surprising that Mr. Miley lost his employment as a result of his lie. An employer relies on integrity and honesty of an employee. This is particularly so when a person applies for employment and represents his or her qualifications. Based on representations in résumés, an employee is given duties, responsibilities and remuneration accordingly.
[12] Applying the principles set out above, Mr. Miley’s termination could not have been discovered by due diligence because the event of his firing had not occurred. The defendants argue that Mr. Miley knew that his résumé was false as to the representation that he had a degree when he knew he did not, and that he could have brought this to the attention of his employer at any time. That is true, but Mr. Miley did not know he would be caught and that his employer would terminate him, although as I stated earlier, it should not have been a surprise to Mr. Miley.
[13] The evidence is credible as the documents are disclosed terminating Mr. Miley’s employment. I find that the documents produced by the plaintiff as to his termination are credible.
[14] The evidence is relevant because although Mr. Miley is without employment, it may affect the issue of earning capacity or it may not, as at the time of trial Mr. Miley’s responsibilities and remunerations with Coast Capital were likely based, in part, on his having a degree. However, Mr. Miley testified that being a professional writer could be attained by education or by experience. Whether this testimony, given by Mr. Miley, was in anticipation that his lack of a degree would be revealed, I do not know.
[15] The evidence of his termination is neutral.
[16] I allow the plaintiff’s application and the evidence allowed is that Mr. Miley’s employment by Coast Capital has been terminated by them.
Reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, confirming that failure to pay jury fees nullifies jury notice even when a trial is adjourned.
In today’s case (Blaikie v. Penafiel) the Plaintiff was injured in a collision and sued for damages. The Defendant filed a jury notice but did not pay the fees in the required time frame prior to the initial trial being adjourned by consent. The Defendant sought to rely on the jury notice in the subsequent trial and the Plaintiff objected. The Court found that the initial failure to pay the fees nullified the jury notice. In reaching this conclusion the Court provided the following reasons:
[2] The basic facts are that the plaintiff was injured in a motor vehicle accident on March 15, 2008. Liability has been admitted by the defendants. The trial was first set to proceed on December 2, 2013, and jury notices were filed by both the plaintiff and the defendants. On October 18, 2013, jury fees were due and payable. Neither the plaintiff nor the defendants paid the jury fees. On November 22, 2013 the defendants applied to adjourn the trial, and it was ultimately adjourned by consent and rescheduled to September 29, 2014. On January 3, 2014, the defendants purported to file a new jury notice.
[3] It is my conclusion that the application of the plaintiff should be allowed. In my view, the law is clear that, having failed to perfect their right to a jury by both issuing the jury notice in time and paying the fees as required under the Supreme Court Civil Rules, B.C. Reg. 168/2009 (the “Rules”), the defendants have relinquished voluntarily the right to a trial with a jury.
[4] I refer to the decision in Clark v. D. & M. McBicycle Shop Ltd. (1992), 75 B.C.L.R. (2d) 133, where the Court concluded:
In this case, the Plaintiffs voluntarily chose to relinquish their right to a trial with a jury by not paying the jury fees. The provisions of the Jury Act clearly provide that a party can maintain their right to a trial with a jury provided that the jury fees are paid. The right to a trial with a jury is exercised when the jury notice is filed and served and belongs to the party filing and serving that notice. That right will be maintained, as long as the court does not order otherwise, or as long as the jury fees are paid.
[5] The respondent here says that in fact the jury fees will be paid. They will be paid in advance of the new trial date, as provided for under the Rules.
[6] The defendants relied upon the decision of the Supreme Court of Canada in Saskatchewan River Bungalows Ltd. v. Maritime Life Assurance Co., [1994] 2 S.C.R. 490. In my view that decision is completely inapplicable to a right that is extinguished in accordance with the time limits set out in the Rules. In my view, their voluntary relinquishment of the right to a jury was not and cannot be bound by the law of waiver.
[7] In the circumstances, it is my view that, having failed to pay the jury fees in a timely fashion, the defendant is restrained from filing a new jury notice or paying the fees now.
[8] I am confirmed in that view by the decision in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 (C.A.) in which the court held at para. 21:
The learned judge below was, in my view, quite correct in concluding that the opportunity to issue a new notice of trial, when a trial has been adjourned from the original trial date, cannot automatically carry with it a renewed right to issue a jury notice. …
If a party to a lawsuit is ordered to attend an independent medical exam can a Court hear an appeal of the order after the examination is complete? The BC Court of Appeal addressed this in reasons for judgement released today and the answer is yes.
In finding that an appeal of an IME order is not moot even after the examination takes place the Court provided the following reasons:
[23] The Insurers submit that the appeal is moot because prior to commencement of his appeal Dr. Wright attended the IME, answered the questions posed by Dr. Connell, completed and submitted the 13-page questionnaire referenced in the order, and completed and submitted the Authorization and Consent form and the Governing Law and Jurisdiction Agreement form referenced at para. 4 of the order. In consequence, the respondents say Dr. Wright has now complied with all of the substantive provisions of the order and given that compliance, the appeal should be quashed as moot…
[29] Items 7 to 11, generally speaking, deal with the consequences of the IME order and seek certain specific relief arising out of that order. For example, item 8 seeks that the expert witness report prepared by Dr. Connell, together with copies of his notes and medical records, be destroyed. These issues give life to the appeal and items 1 and 2 which seek to set aside the order granting the IME. Given that the Insurers may rely on that report at trial, it cannot be said that the issue is moot. If this Court concludes that the IME order should not have been made, it will be necessary to determine what relief, if any, is available to Dr. Wright and that relief could arguably include some prohibition or restriction on the use of Dr. Connell’s report.
[30] In the circumstances therefore I would dismiss the application to quash.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a defence application for double costs after a Plaintiff’s personal injury claim was dismissed.
In this week’s case (Miller v. Emil Anderson Co. Ltd.) the Plaintiff was involved in a motor vehicle collision alleging that an unidentified vehicle contributed to the incident. Prior to trial the Defendant made a formal settlement offer of $1 which “expressed the defendants’ belief that the Court would conclude that Mr. Miller had suffered no compensable injury.”
Ultimately the Plaintiff’s claim was rejected with the Court concluding that “memory and perception of the key events preceding his loss of control of his vehicle were not reliable.”. Despite this the Court found the walk-away offer was not reasonable as the plaintiff had a sincere belief in his perception of the event and that “ had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit“.
In dismissing the Defendant’s request for double costs Madam Justice Ballance provided the following reasons:
[15] In the present case, Mr. Miller proceeded upon his hypothesis as to how the accident occurred, including the purported role of another vehicle. He tendered no expert evidence in the field of engineering and/or accident reconstruction in support of his theory. In weighing the evidence, I concluded that Mr. Miller had not proved his case on a balance of probabilities. In reaching that conclusion, I found that his memory and perception of the key events preceding his loss of control of his vehicle were not reliable.
[16] Despite the frailties in Mr. Miller’s testimony and his faulty recall of events, I did not doubt that Mr. Miller’s perception of events, including his theory as to how the accident occurred, was sincere. He did not attempt to mislead or deceive the Court. Had he accepted the defendants’ offer, he would have been giving up, without adjudication, a claim that he believed had merit. A belief that was neither groundless nor frivolous…
[18] The Offer is to be considered in the context of a serious liability issue where neither side called expert engineering or accident reconstruction evidence in relation to the pivotal issue of what had caused the accident. Mr. Miller was aware that he and the defendants held conflicting versions of the material events and that there was a risk that, if the Court found that the evidence did not support his case, his action would be dismissed. However, it does not follow that the nominal Offer ought reasonably to have been accepted by Mr. Miller at any time. As was the case in Stuart, the Offer provided nothing to Mr. Miller in relation to the claim itself and proffered little meaningful benefit to him.
[19] The evidence indicates that Mr. Miller was in his early 70s at the time of the accident and was retired or semi-retired from prospecting. Beyond that, there was no cogent evidence of his financial circumstances and I am therefore unable to agree with his counsel’s submission that it was clear he is impecunious.
[20] Although Mr. Miller ultimately failed to make out his case on a balance of probabilities, I would not characterize his refusal to accept the Offer as unreasonable.
[21] Weighing the pertinent factors and giving the most weight to the fact that I am unable to say that it was unreasonable for Mr. Miller to refuse the Offer, I consider it a fair exercise of my discretion to decline to order double costs. An award of costs at Scale B in favour of the defendants is appropriate in this case and will likely be of significant consequence to Mr. Miller.
[22] Accordingly, the defendants’ application for double costs is dismissed. They will have their costs at Scale B.
Adding to this site’s archives addressing non-pecuniary assessments for traumatic brain injury, reasons for judgement were released today addressing a brain stem injury.
In today’s case (Van v. Howlett) the Plaintiff was a passenger involved in a 2007 collision. The force of the collision ejected the plaintiff causing various injuries inclucing a brain stem injury. Her prognosis for meaningful recovery was poor and in fact her functioning was expected to deteriorate as time went on. In assessing damages at the maximum amount of $351,000 Mr. Justice Grauer provided the following reasons:
[26] Dr. Jason Clement, a radiologist and a specialist in neuroimaging, provided the lead opinion concerning Ms. Van’s brain injury, and I do not hesitate to accept his evidence. He noted that MRI investigation disclosed severe diffuse axonal injury (“DAI”) including grade 1, 2 and 3 lesions, as well as additional intracranial injuries in the form of subdural and subarachnoid haemorrhage. A grade 3 DAI lesion involves the brainstem and is the most severe grade. These lesions act as markers for diffuse underlying injury throughout the brain resulting in significant chronic cognitive dysfunction and impairment in all cognitive domains. In fact, Dr. Clement explained, this type of injury is more consistent with people in a persistent vegetative state, which Ms. Van is not.
[27] The severe DAI sustained by Ms. Van is also known to trigger progressive cerebral atrophy leading to an increased risk of progressive cognitive decline and premature dementia. In addition, the multiple focal brain injuries have left her with a lifelong increased risk of seizures.
[28] Dr. Clement explained that people do not recover from this sort of injury, and that the treatment focus must be on reducing further decline to the extent possible…
[50] On the evidence before me, I have no difficulty in concluding that the injuries suffered by Ms. Van are catastrophic. We are, in any practical sense, our brains. A brain injury of this degree of severity is a loss of one’s very self. Like Ms. Spehar, Ms. Van “has lost what to many is one of the most valuable aspects of being an adult human — the ability to have control over one’s own life” (Spehar at para 13). No aspect of her life, including her closest relationships, has been left unimpaired. Her outlook for the future is dismal. Her days are filled with pain and frustration. There is no possibility of recovery. The best she can hope for is that her deterioration will be slowed, and that her anger, frustration and depression can be addressed through medication and distraction. At worst, she will experience a premature and accelerated descent into dementia, losing what little has been left to her.
[51] In these circumstances, I conclude that Ms. Van is entitled to an award at the upper limit. I assess her non-pecuniary damages at $351,000.