Skip to main content

Motorist Found Fully At Fault Following Collision With Moose at Highway Speed

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

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.
 

It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

Written by admin on . Posted in Civil Procedure, Uncategorized. 67 Comments on It Ain't Over Till It's Over- Fresh Evidence Allowed After Close of Injury Prosecution

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.

 

 

Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

Written by admin on . Posted in Uncategorized. 65 Comments on Failure to Pay Jury Fees Nullifies Jury Notice In Rescheduled Trial

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. …

Court Has Jurisdiction to Overturn an IME Order After the Examination is Complete

Written by admin on . Posted in Civil Procedure, Uncategorized.

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.

"Walk Away" Offer Fails to Trigger Double Costs in Liability Trial

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized.

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.

"Upper Limit" Non-Pecuniary Damages Awarded Following Brain Stem Injury

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

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.

BC Court of Appeal – Lawyers Using "ICBC" in Domain Name Does not Confuse Consumers

Written by admin on . Posted in Uncategorized.

Update February 6, 2015 – This week the Supreme Court of Canada dismissed ICBC’s bid to appeal this decision.
_____________________________________
Reasons for judgement were released today by the BC Court of Appeal confirming that plaintiff lawyers can use “ICBC” in their website domain name and that this does not lead to consumer confusion.
In this week’s case (ICBC v. Stainton Ventures) ICBC alleged that the use of ‘icbc’ in a domain name used as a marketing tool for personal injury lawyers was misleading and in breach of ICBC’s intellectual property rights.   This argument was dismissed at trial.  ICBC appealed arguing “the relevant consumer, having the familiarity but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice on its business, wares and services, when viewing such marks as a matter of first impression”.ICBC 
The BC Court of Appeal disagreed and dismissed ICBC’s appeal.  In doing so the Court provided the following reasons:
[37]         I am unable to accept this argument as it fails to give the “relevant consumer”, i.e., an Internet user, credit for even the most basic understanding of the function of a domain name.  Even though there is some resemblance between ICBCadvice.com and ICBC’s family of marks, the average Internet user with an imperfect recollection of ICBC’s marks would not likely be mistaken by the domain name.  They understand, for example, that a domain name which, in part, contains the name of a business or its acronym will not necessarily be affiliated with or endorsed by that business and may, instead, be the subject matter of the website or entirely unrelated to that business.  As well, they understand that it is necessary to view a website to determine whose site it is.  While I appreciate that Mattel, Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772, involved a dispute over a trade-mark rather than an official mark, it is noteworthy that the Court attributed a reasonable level of intelligence to “the casual consumer somewhat in a hurry”:  paras. 56-58.  In the present context, to paraphrase a passage from Michelin & Cie v. Astro Tire & Rubber Co. of Canada Ltd. (1982), 69 C.P.R. (2d) 260 (F.C.T.D.), quoted with approval in Mattel, Inc., one must not proceed on the assumption that average Internet users are completely devoid of intelligence or of normal powers of recollections or are uninformed as to what goes on around them.
[38]         ICBC submits this Court must be cautious to avoid failing to differentiate the test applicable to official marks from the “source confusion” test applicable to trade-marks under s. 6 of the Trade-marks Act.  In its oral submissions it repeatedly adverted to the need to avoid applying the “source confusion” test in the context of official marks.  While different tests do apply, it must be kept in mind that any mark, including an official mark, serves an identification function, whether as to source, endorsement, or otherwise.  ICBC’s submission that “the relevant consumer, having the familiarly but imperfect recollection of the ICBC Official Marks, would likely be led to believe that ICBC itself is offering advice”, suggests that ICBC appreciates that one of the objectives of the official-marks regime is to protect the public by prohibiting the use of a mark which so nearly resembles an official mark that a person seeing that mark would mistakenly believe it to be the rights-holder’s mark.
[39]         As indicated above, I am unable to accept that the average Internet user does not appreciate that domain names—which are limited to short combinations of alphanumeric characters—are often merely descriptive of the subject matter of the website to which the domain name resolves, rather than indicating affiliation, source, or endorsement.  Put otherwise, a person who conducted a search—using, for example, the terms “ICBC” and “advice”—which returned ICBCadvice.com in its list of results would not, based solely on observing that domain name, mistakenly believe that the “advice” referred to is provided or endorsed by ICBC.  Neither would they, as a matter of first impression, be mistaken by the fact that the domain name starts with “ICBC”.  The most that person would conclude is that the website likely had something to do with the corporation.
[40]         In the result, I agree with the trial judge that the website ICBCadvice.com and its related domain names do not contravene ss. 9 and 11 of the Trade-marks Act.

Defence Expert Witness Found Biased After Presenting "a Distorted Recording of his Interview" With Plaintiff

Written by admin on . Posted in Uncategorized. 113 Comments on Defence Expert Witness Found Biased After Presenting "a Distorted Recording of his Interview" With Plaintiff

Adding to this site’s archived cases criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, criticizing the evidence of a defense hired psychiatrist.
In today’s case (Yang v. Engen) the Plaintiff was injured in a 2011 intersection collision.  Fault was admitted by the Defendant.
The Plaintiff suffered moderate soft tissue injuries but her recovery was complicated by “ever-increasing emotional difficulties and mood disorders“.
The Defendant retained a psychiatrist who minimized the connection between the collision and these psychological difficulties.  In finding the expert witness crossed the line into advocacy Mr. Justice Davies provided the following comments:
[53]         After hearing those submissions and reviewing Dr. Levin’s original and rebuttal reports, I concluded that it was necessary to excise as inadmissible the following parts of his reports:
1)    The observation in the body of his opinion that:
It should be mentioned at the beginning of this summary that Ms. Yang’s diagnostic formulation should be viewed in the context of her interview in my office that revealed numerous discrepancies and inconsistencies between her subjectively-reported complaints of anxiety and her virtually-unimpaired social, occupational and interpersonal functioning. Ms. Yang initially omitted and under-reported her pre-existent history of psychological/emotional disturbances, attributing her current subjectively-presented complaints of “generalized” anxiety specifically and selectively to the subject MVA.
2)    The observation in Appendix C of his opinion that:
From a diagnostic perspective, however, the above-reviewed psychological clinical notes do not identify any specific PTSD symptomatology or reports of any type of generalized anxiety described by Ms. Yang during the interview in my office. It seems that Ms. Yang’s “generalized anxiety” disturbances had a somewhat rapid onset following her reported psychiatric consultation with Dr. Lu (organized by her lawyer).
[54]         I excised those paragraphs because:
1)    The excised observations in the body of his opinion not only crossed the line into an improper assessment of credibility but also constituted advocacy in the guise of expertise; and
2)    The excised observations in Appendix C demonstrated an unwarranted and unsubstantiated personal attack not only on the credibility of the plaintiff but also upon a well-qualified psychiatrist and upon plaintiff’s counsel.
[55]         I did not, however, rule that the totality of Dr. Levin’s reports should be determined to be inadmissible at that stage of the proceeding because I was satisfied that fairness to the impugned expert and to the defendant who had relied upon his evidence required that such a ruling should not be made without the benefit of hearing Dr. Levin’s evidence in chief and in cross-examination
[56]         I reached that conclusion also because of the complexities of the subject matter on which Dr. Levin was seeking to opine and in the context of the breadth of the attack by counsel for Ms. Yang upon not only his substantive opinion but also the methodology employed by Dr. Levin in rendering it.
[57]         After hearing his evidence at trial and having the opportunity to consider the totality of his evidence, including both written opinions and the entirety of his testimony at trial, I have concluded that Dr. Levin’s opinion presents a distorted recording of his interview with Ms. Yang by failing to identify with preciseness the questions which he asked of her and by his interspersed editorializing as to what answers he would have expected, all of which constituted his assessment of her lack of credibility which he then used as the basis for his diagnosis. That in turn resulted in a resort to advocacy on behalf of the defendant in relation to issues of causation and, in my view, demonstrated a personal investment in the litigation sufficient to constitute bias.
[58]         Those concerns were even more dramatically highlighted by a highly personalized, and, in my view, entirely unwarranted attack upon Dr. Lu’s opinion and professionalism in Dr. Levin’s rebuttal report delivered in response to Dr. Lu’s critique of Dr. Levin’s analysis.
[59]         In result, I have concluded that Dr. Levin’s opinions suffer so greatly from overstepping the proper bounds of opinion evidence into the assessment of credibility (a function for the trier of fact), advocacy and bias, that they are inadmissible.
[60]         I must also observe that even if I had concluded that some part or parts of his opinions could be determined to be admissible, I would in any event have been required to give such opinions little or no weight because of the many shortcomings to which I have adverted.
[61]         That conclusion is also mandated because while Dr. Levin improperly questioned the veracity of many of Ms. Yang’s responses to his questions and offered his versions of what responses he would have “expected,” counsel for the defendants did not confront Ms. Yang with the alleged “inconsistencies” and “discrepancies” relied upon by Dr. Levin in rendering his opinions.
[62]         What is left is simply an array of unfounded and untested allegations of dishonesty and exaggeration that do not accord with my own assessment of Ms. Yang as a witness.
[63]         Notwithstanding that English is Ms. Yang’s second language she is fluent in it and well able to express herself. She impressed me as a stoical, careful and honest witness who listened carefully to the questions asked of her and responded without exaggeration.
[64]         Although the anxiety she testified about now suffering related to seemingly common everyday life situations may seem wholly disproportionate to the circumstances she related in her evidence which manifest in those reactions, the totality of the evidence, including most importantly the psychological evidence of Dr. Lu to which I have referred in detail, convinces me that the anxiety she expresses is genuine.
[65]         In summary, I find that I can safely rely on the veracity of Ms. Yang’s testimony concerning the injuries she suffered in the collision, the progress of those injuries and the extent to which they have impacted her life both on a physical and emotional level.

$70,000 Non-Pecuniary Assessment for Chronic Soft Tissue Injuries Perpetuated by Stress

Written by admin on . Posted in ICBC Psychological Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today addressing damages for lingering soft tissue injuries compounded by pre-existing emotional distress.
In today’s case (Adkin v. Grant) the Plaintiff was involved in a 2010 rear end collision.  She was 66 at the time of the crash and 69 at the time of trial.  She suffered a variety of soft tissue injuries and some of her symptoms continued to the time of trial.  A perpetuating factor for this was pre-existing emotional distress which exacerbated her symptoms.  In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons:
209]     As mentioned, I find that the motor vehicle accident of September 3, 2010 caused injury to the soft tissues of the plaintiff’s neck and upper back and that the injury was of moderate degree. As a result of this injury, the plaintiff suffered pain in these areas and, for a limited period of time, suffered headaches. I find that the injury did not aggravate or worsen the plaintiff’s pre-existing physical conditions, but was super-imposed over them. There may have been minimal injury to the soft tissues of the plaintiff’s lower back, but if so, that injury had healed within six weeks of the accident…
[212]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff is still suffering some neck, upper back and shoulder pain as a result of the soft tissue injury she received in the car accident. It is implicit in Dr. Salvian’s opinion that he says the accident is still causing all of the pain that the plaintiff continues to experience in the soft tissues of her neck, upper back and shoulders. I have rejected that all-encompassing opinion. Dr. Kemble seems to say that most of the soft tissue pain that the plaintiff continues to experience in her neck, upper back and shoulders is being caused (intensified and perpetuated) by her emotional distress (and he says that the emotional distress was a pre-existing condition and was not caused by the accident). I have not accepted those opinions of Dr. Kemble where they conflict with the opinions of Dr. Allison.
[213]     Both Dr. Salvian and Dr. Kemble agree that the plaintiff will continue to suffer physical symptoms as a result of her injury, for an indefinite period of time into the future (although they differ as to the frequency and intensity of such symptoms).
[214]     I accept Dr. Kemble’s opinions to the extent previously identified. I find that some of the plaintiff’s ongoing symptoms of pain in her neck, upper back and shoulders are being caused by the injury from the accident. And I find that she will continue to experience episodes of increased pain in the future, as a result of her injury on September 3, 2010.
[215]     I find that the plaintiff had a pre-existing condition of emotional distress which was affecting her to some extent at the time of the accident. I find also that the plaintiff’s experience of being involved in the motor vehicle accident, her physical injury, and her emotional reaction to that injury caused additional emotional distress to her. That emotional distress adversely affected the plaintiff’s powers of concentration and memory for at least a year, and perhaps longer. However, the effects of the plaintiff’s distress on her memory and concentration was minimal (almost non-existent) by the end of May 2011 when she was examined by Dr. Allison. The plaintiff was continuing to feel emotional distress at the time of trial, and I find that some of that ongoing stress is being caused by the accident of September 3, 2010…
[233]     In all of the circumstances, it is my opinion that a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount.
 
 

Adverse Inference Drawn After Plaintiff "Chooses to Suppress" GP's Evidence

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived database of judgments addressing adverse inferences in personal injury lawsuits, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, drawing such an inference.
In today’s case (Rogalsky v. Harrett) the Plaintiff was involved in a relatively modest collision in 2010.  Fault was admitted.  The Plaintiff suffered a variety of injuries.  In support of her claim the Plaintiff tendered “a somewhat dated” report from an independent medical practitioner.  The Plaintiff did not produce evidence from her GP despite seeing him shortly before trial for the purposes of a medical-legal assessment.  In finding an adverse inference appropriate in these circumstances Mr. Justice Verhoeven provided the following reasons:
[44]         I am very troubled by her decision to not call evidence from her doctor. As noted, she confirmed that she saw him on February 26, 2014, for examination in relation to a medical legal report. His report is not in evidence, nor are his prior reports.  The plaintiff denied seeing the recent report or being aware of its contents. I do not accept that part of her evidence.  I cannot accept that the plaintiff had no input into the decision not to adduce the report.  At a minimum, she must be aware of the optimistic opinion Dr. Burns set out in an earlier report dated April 5, 2011, also not adduced in evidence, the contents of which are referred to in Ms. Hunt’s report, which the plaintiff acknowledged reading.  In her evidence the plaintiff downplayed the efficacy of the treatment provided by Dr. Burns and in effect his opinions by stating that her appointments with him are rushed and he does not seem appropriately focussed on her concerns.  In my view the plaintiff has simply chosen to suppress and downplay Dr. Burns’ evidence because it is not helpful to her case.  This adversely affects her credibility as a witness.
[45]         Moreover, in the circumstances of this case I consider it appropriate to draw an inference that Dr. Burns’ evidence would not have been favourable to her case.
[46]         Dr. Koo was not asked to provide an updated report based upon a further more recent examination of the plaintiff.  Thus his report is somewhat dated. In addition the weight I can give to the report depends upon the weight I can give to the evidence of the plaintiff herself, in respect of which I have some reservations, as indicated.