Important reasons for judgment were released today by the BC Court of Appeal confirming, in divided reasons, that it is contrary to public policy to allow a vehicle owner/operator to contract out of liability for damages for personal injuries.
In today’s case (Niedermeyer v. Charlton) the Plaintiff embarked on a tour to Whistler BC to participate in various activities including a zip lining experience. Transportation to and from Whistler was provided the by the Defendant. During the return trip the bus driver “allowed the bus to get too close to the edge of the road and…the bus went off the road and over the edge“. The Plaintiff suffered severe injuries including a fractured neck, ribs and vertebra.
Prior to the trip the Plaintiff signed a waiver agreement which covered activities such as ziplining but also included a clause covering “travel to and from the tour areas”. The Defendant was, like most BC motorists, insured with ICBC and the Plaintiff sued for damages. The Defendant admitted he was negligent but the waiver was upheld at trial dismissing the plaintiff’s claim. In overturning this decision the majority of BC’s Court of Appeal provided the following reasons: [114] In my view, the ICBC regime is intended as a benefit for the public interest just as is human rights legislation. It would be contrary to public policy and to a harmonious contextual interpretation of the legislation to allow private parties to contract out of this regime. As such, to the extent that the Release purports to release liability for motor vehicle accidents it is contrary to public policy and is unenforceable. The judge erred in finding that the public policy interest exemplified in a compulsory universal insurance scheme was incapable of defeating society’s interest in freedom of contract.
Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, making an interesting award with respect to past wage loss covered by a sick leave plan.
In this week’s case (Bulpitt v. Muirhead) the Plaintiff, a firefighter, was injured in a 2007 collision. He did not suffer an actual wage loss as “he received all of the wages he would otherwise have received had the accident not occurred as sick leave benefits to which he was entitled as an employee of the City of New Westminster“. These benefits were subject to a subrogation agreement which was put into evidence. The court expressed concern about whether this was a sufficient basis to make an award for past loss of wages. Instead, the court did not award money for past wage loss but used its inherent jurisdiction to make a blanket order that the Defendant provide full indemnity to the plaintiff in respect of any amount of the judgement that the plaintiff is, or becomes, obligated to re-pay the City. In reaching this decision Mr. Justice Weatherill provided the following reasons: [102] The only evidence proffered by the plaintiff during the trial in respect of a claim for past wage loss came in the form of a letter dated June 6, 2008 from a payroll clerk with the City of New Westminster to ICBC. It states: “Please find enclosed the completed Certificate of Earnings form for [the plaintiff]. I am also attaching a copy of the subrogation agreement from the Collective Agreement for The City Firefighters’ Union, Local 256. The gross pay lost up to May 30, 2008 due to [the Accident] is $20,365.56. Please be aware that his sick claim is still ongoing so this figure is not a final amount. When a settlement has been reached, please forward to my attention the total amount of earnings lost due to this accident, plus any interest attributed to those earnings, payable to the City of New Westminster. This will allow us to credit Mr. Bulpitt’s sick plan and return any gratuity hours that he lost due to the accident. [Emphasis added] [103] The attached “subrogation agreement” states:
Sick Leave Recovery
a) An employee may use sick leave credits for time lost through accidental injuries PROVIDED THAT prior to making a claim or commencing an action for damages against a third party in respect of such injuries, he shall notify the Employer of such claim and enable the Employer the opportunity to be represented in all proceedings or settlement discussions relating to the claim. Any such claim shall include a claim for loss of wages including pre- and post- judgement interest, and to the extent that recovery is made, such amount will be reimbursed to the Employer. The Employer will reimburse the employee, fifty percent (50%) of the cost of the legal fees certified by the employee’s legal counsel as being attributed to providing the wage/benefit loss claim. [104] During argument at trial, I expressed to plaintiff’s counsel my concern that this evidence was insufficient to prove the employer’s right to make a subrogated claim for the wage benefits it had paid to the plaintiff while he was unable to work due to his Accident-related injuries… [108] Regardless, it is my view that the June 6, 2008 letter and the excerpted portion of the Collective Agreement is evidence that the plaintiff’s sick leave benefits were not as they would have been but for the Accident. Clearly, there was a benefit plan that had been negotiated by the City and the firefighters’ union the terms of which were contained in the Collective Agreement. Further, this letter is evidence of what it will take to restore the plaintiff’s sick leave plan to its pre-Accident status. [109] In all cases, the court retains residual power to grant appropriate relief through its inherent jurisdiction: Anderson v. Buydens, [1998] B.C.J. No. 2675 at para.16 (S.C.). In this case, a miscarriage of justice would result if the plaintiff was awarded nothing for past wage loss because he received benefits from his employer yet the employer was able to “claw back” those same benefits by way of a right of subrogation. I am satisfied that there ought to be a provisional award for past wage loss in this case. The plaintiff is entitled to full indemnity from the defendants in respect of any amount to which the plaintiff is or becomes obligated to re-pay to the City of New Westminster in respect of benefits he received as a result of the Accident.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing the use of the principled exception to the hearsay rule with respect to a statement from an unidentified witness.
In today’s case (Biggs v. Doe) the Plaintiff was involved in a serious collision in 2006. His motorcycle struck the pup trailer of a dump truck. This resulted in profound injuries which required an above knee amputation for the Plaintiff.
The Plaintiff alleged that an unidentified motorist struck his motorcycle from behind which forced him to lose control causing the collision. In support of his claim the Plaintiff attempted to introduce the hearsay evidence of an unknown witness present at the scene who apparently could corroborate the Plaintiff’s version of events. In finding there is no reliability to the proposed evidence Mr. Justice Bernard provided the following reasons in excluding it: [61] Mr. Biggs seeks to tender the unknown woman’s statements to Mr. Lasser for their truth, pursuant to the well-established “principled exception” to the rule against hearsay. The principled exception permits the admissibility of a hearsay statement for its truth if it is shown, by the party seeking to adduce it, to be both necessary and reliable. In relation to the latter, it is threshold (vs. ultimate) reliability that is the evidentiary standard that must be met for admissibility… [64] Having due regard for the foregoing legal principles, for the reasons which follow I am not persuaded that the plaintiff has established that there is threshold reliability to the evidence in question; accordingly, the claimed observations of the unknown witness cannot be admitted into evidence for their truth. In short, the plaintiff has not established either that the statements were made in circumstances in which there is no compelling concern about their reliability, or that sufficient means for assessing their reliability exists. [65] In this regard, virtually nothing is known about the woman to whom the statements are attributed other than she was present at the scene of the accident, claimed to have seen it, was upset by it, and chose not speak to the police or even identify herself to them in circumstances which cried out for doing so. Her failure to act responsibly is very troubling. It raises concerns about her motives and, thus, the reliability of any words attributed to her. [66] Significantly, this woman cannot be linked to a specific vehicle, and there is no evidence of where she was and, thus, what her perspective was at the time of her observations. In the absence of such evidence, no reasonable inferences can be drawn about her ability to make accurate observations and relate them to others. [67] The nature of the event the unknown woman witnessed is an important factor. In the instant case, the event was a dynamic one involving multiple motor vehicles moving at relatively high speeds in relation to one another and at the time of the collision with the pup trailer. Even witnesses who are well-positioned, focused, and have clear and unobstructed views are prone to misperceiving or misconstruing such highly dynamic events. [68] The circumstances in which the statements were made and the absence of any recording of relatively complex assertions at a time reasonably proximate to the utterances, raise significant concerns about Mr. Lasser’s ability to restate them with accuracy. In this regard, it is noteworthy that Mr. Lasser was not an investigator and that his focus was on the task of setting out road flares. The unknown witness was in an agitated state and Mr. Lasser neither questioned anything she said nor sought any clarification. Testifying to the gist of what an eyewitness said is troubling when the statements venture well beyond a simple and clear assertion that can be repeated with confidence as to its accuracy. For example, at trial Mr. Lasser remained uncertain as to whether the unknown woman said the events unfolded ahead of her or from behind, as observed through a rear-view mirror. [69] Finally, it is of some significance that the unknown witness described events which are inconsistent with other reliable evidence. For example, it is not a matter of controversy that Mr. Booth’s fifth wheel was in the far right lane at all relevant times. This evidence is difficult to reconcile with the unknown woman’s version of events which apparently has the motorcyclist in the same lane as the fifth wheel when it accelerated into the bumper of the fifth wheel to avoid a car merging from his right side. There is no lane to the right of the merge lane; moreover, the unknown witness does not describe a rear impact to the motorcycle. [70] For all the foregoing reasons, I am not persuaded that the evidence in question meets the standard of threshold reliability; indeed, in my assessment it falls very far short of it. In the absence of threshold reliability, admissibility under the “principled exception” to the rule against hearsay must fail and, thus, there is no need to determine whether the “necessity” prong of the two-part test has been satisfied.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, allowing a Plaintiff to recover interest charged on a loan which financed disbursements.
In today’s case (Phippen v. Hampton) the Plaintiff sued for damages following a personal injury. In the course of the claim the Plaintiff borrowed funds from a company associated with the lawfirm she hired to advance her personal injury claim. This loan was for disbursement funding and the lender charged interest at 15%. The Court was satisfied that the loan was needed but reduced the recoverable interest to 6%. In reaching this conclusion District Registrar Cameron provided the following reasons: [2] I am satisfied based upon the Affidavit evidence provided by Ms. Phippen, that she has established that her financial situation was such that it was necessary and proper for her to seek out financing for the disbursements that needed to be incurred to pursue her claim… [5] Mr. Mullally goes on to say — and I do not find this to be controversial — that it is difficult for most clients who have suffered a personal injury to finance the necessary disbursements that must be incurred to advance their case. [6] In passing, of course, this highlights the need for contingency fee agreements that allow for access to justice and alongside that disbursement loan arrangements, if they can be accommodated by the law firm or arranged by the law firm also help with that same purpose in mind… [12] Turning to the circumstances of this case, Ms. Phippen was charged an interest rate of 15 percent by PIL. [13] In Chandi, supra, Mr. Justice Savage said that the Registrar must consider the entire context of the arrangement. In this case — and I refer back to Mr. Mullally’s evidence — while the law firm did not itself lend the funds necessary for the disbursements to the Plaintiff, a company that the law firm or members of the law firm had a controlling interest in provided that assistance. [14] Looking at the matter contextually I find that the law firm was not arm’s length from the lender, PIL. This was properly conceded by Plaintiff’s counsel. In this case, the law firm arranged the necessary loan for the Plaintiff that provided for a profitable rate of interest to the lender. In the current economic climate, I am not satisfied that an interest rate of 15 percent is reasonable to pass along to the Defendant, and as Master McDiarmid and Master Young have done in the decisions I have referred to, I will award a rate of six percent.
Reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, addressing the appropriateness of assumed future fact scenarios in an economists report. In short the Court held that such assumptions could be laid out in the body of a report.
In the recent case (Hill v. Murray) Mr. Justice Macaulay provided the following comments on this topic: [7] In Sacilloto v. Crossman (1990), 49 B.C.L.R. (2d) 375 (S.C.), the defence objected to an economist’s report that set out various possible scenarios for the expected earnings of the plaintiff, based on the assumption that he had not been injured in the accident, along with further scenarios for possible earnings after the accident. [8] The court pointed out that many of the assumptions underpinning the report were at issue in the trial and, as a result, it would be impossible for counsel or the economist to rely on one assumption as to facts. The court considered the use of several scenarios to be in harmony with the fact that there were a number of live issues at trial. On admitting the report, the court stated: (12) I am left with the impression that the author of the report has endeavoured … to tie the statistical data to the various possible scenarios that I may find or may not find applicable to the plaintiff. In doing so, he has endeavoured to mould the report to the likely evidence scenarios before the Court. That opinion evidence to me is useful evidence. It provides me with materials which, from my general experience both before and after coming to the Bench, I would not otherwise have. (13) The case here is not a simple looking ahead for someone who has worked for many years and has established his working pattern in life. … (14) Here, I am dealing with a young man who is embarking upon a working career, who on the evidence … was in a state of flux as to what he would do in the future … The type of evidence that has been put before me is such that I could not from my own experience pluck it out of my mind and arrive at reasonable estimates as to what might lie ahead depending on the findings of fact that I make. Although this case suggests that admissibility may depend on the complexity of the calculations involved and the uncertainty of the future options for the plaintiff, the use of the scenarios does not in itself render the material inadmissible. [9] Finally, the Court of Appeal implicitly improved the admission and use of such expert opinion material in Jurczak v. Mauro, 2013 BCCA 507. In that case, the economist provided an expert opinion on loss of earning capacity based on two sets of assumptions arising out of the plaintiff’s pre-accident work history and proffered scenarios in each case. [10] Although the Court of Appeal overruled the trial judge’s approach to determining future loss of earning capacity, the court commented, “if there are mathematical aids that may be of some assistance, the court should start its analysis by considering them.” A failure to do so may result in a wholly erroneous estimate of the damages (both at paragraph 37). [11] In this regard, I am satisfied that the sections of the reports and tables to which the defendant objects in the present case are admissible.
To my knowledge these reasons for judgement have not yet been publicly published but, as always, I am happy to share a copy with anyone who contacts me and requests them.
In perhaps one of the strongest judicial drubbings in recent years by the BC Supreme Court, an expert witness was criticized for abandoning his obligation to assist the court in favour of advocacy.
In today’s case (Mattice v. Kirby) the Plaintiff was injured following a high impact collision. The Court heard competing medical evidence as to the severity of the Plaintiff’s collision related injuries. In rejecting the defense evidence which minimized these Mr. Justice Jenkins had the following critical comments: [1] This case involves a significant claim for damages for personal injuries following a high impact collision on August 21, 2009. Of particular interest in this case is the dramatically different approaches taken by the medical experts for both sides. In spite of statements by these experts that they are aware of their obligations as expert witnesses under Rule 11-2(1) of the Supreme Court Civil Rules, B.C. Reg. 168/2009, and their duty to assist the Court and not be an advocate for any party, in some cases it is clear that the temptation to become an advocate takes priority over the obligation to assist the Court… [75] Dr. Keith Christian, an orthopaedic surgeon, provided an expert report for the defence and was also cross-examined at trial. Dr. Christian assessed Mr. Mattice on October 19, 2012 and issued a report the same day. Dr. Christian completed his interview and physical examination of Mr. Mattice in a total of twenty minutes, which included 16 minutes for the interview and four minutes for the physical examination. Dr. Christian did not disagree that his assessment of Mr. Mattice was very brief. [76] During cross-examination, Dr. Christian was very argumentative and often arrogant. He stated that when asked previously by defence counsel whether he took notes of his meeting with Mr. Mattice, he advised that he did not take notes. At trial Dr. Christian admitted to having taken “scribbles”, which he said were illegible and which he destroyed after dictating his report on the day of the assessment. He said he had denied having taken notes as he had instead made “scribbles” and that no one had asked him if he had taken any “scribbles”. Since Dr. Christian admitted on cross-examination to having used his “scribbles” to dictate his report, there is little doubt in my mind that his “scribbles” were what any doctor would consider “notes” and that Dr. Christian was well aware that his “scribbles” constituted what anyone else would consider to be “notes”. His answers in this inquiry were most evasive and clearly showed a lack of willingness to be frank, open and honest with the Court. [77] Dr. Christian’s interview and physical examination of Mr. Mattice were without question incomplete. On cross-examination, Dr. Christian admitted that he had not asked Mr. Mattice questions regarding, among many other things: the severity of the accidents of 2008 and 2009; any symptoms in his hands such as pain and “pins and needles”; whether symptoms, if there were any, were improving; bruising on Mr. Mattice’s elbow; the nature of his employment; the extent of the pain in his shoulder; and sleep problems. Dr. Christian also did not inquire about aspects of the accident that were relevant to the injuries claimed, such as Mr. Mattice’s body position in the 2009 accident and how he was impacted in the accident. In written submissions, counsel for Mr. Mattice listed 18 areas of legitimate inquiry that Dr. Christian could have pursued to provide a more informed and unbiased opinion; in my view, there were areas in addition to these 18 which Dr. Christian could have explored, but elected not to do so…. [82] In cross-examination Dr. Christian stated that there was no reason at the time for him to be having shoulder pain, that any fatigue being experienced by Mr. Mattice was “absolutely irrelevant”, that there was no reason for Mr. Mattice not to improve, and that there was no reason for Mr. Mattice to have a problem with his shoulder. He stated that, generally, in his opinion, Mr. Mattice should have been over any injuries from the 2009 accident long before the visit to Dr. Christian. [83] In conclusion on Dr. Christian’s evidence and opinions, I have no hesitation in finding that his research was incomplete, that he was predisposed to a finding that Mr. Mattice’s injuries were either exaggerated or did not exist, and that by limiting his opinions to musculoskeletal injuries, he was not qualified to opine on the injuries which Mr. Mattice claimed to have suffered in the 2009 accident. As a result, I find the opinions and evidence of Dr. Christian to be of little or no probative value and I am left with the medical-legal opinions of the plaintiff’s expert and all other evidence to make a determination regarding Mr. Mattice’s injuries.
Adding to this site’s archived posts highlighting judicially rejected expert witness evidence reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, criticizing the evidence of a defense medical opinion.
In last week’s case (Kristiansen v. Grewal) the Plaintiff was injured in a 2009 collision. Fault was admitted. The Plaintiff alleged a host of consequences from the crash. Although the Court found that some of the Plaintiff’s difficulties originated from issues other than the collision the crash was causative of some of her difficulties.
In the course of the trial the Court heard from a variety of physicians. Once expert, Dr. Koch, hired by ICBC, was found to be an advocate and his evidence was not accepted for this reason. In rejecting his evidence Mr. Justice Romilly provided the following brief comments: [14] Among the experts, I found that Dr. Koch’s report and his testimony in court seemed to lack objectivity. In fact, he seemed to be more of an advocate for the defendants and ICBC. I have difficulty accepting any of his evidence.
Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for breast implant disruption and a voice injury following a collision.
In last week’s case (Giczi v. Kandola) the Plaintiff was involved in a 2008 collision. The Defendant admitted fault. The collision resulted in chronic soft tissue injuries, a dislodged breast implant requiring surgical correction and muscle spasms leading to voice disruption. In assessing non-pecuniary damages at $120,000 Mr. Justice Sigurdson provided the following reasons: [120] In the instant case, the subject accident caused the plaintiff injuries, including: soft tissue injuries to her neck, jaw, and upper back which caused her chronic pain, functional thoracic outlet syndrome, and damage to her breast implant necessitating surgery months later. The plaintiff’s injuries have resulted in symptoms that are significantly worse than her pre-accident condition and have affected her ability to cope and function. [121] I find the plaintiff suffers from a chronic pain condition which was caused by the subject accident. Not only is the condition painful in the neck, arm and jaw, but the accident dislodged a breast implant requiring further surgery and a painful period of recovery. The chronic pain condition has also had a negative impact on the plaintiff’s relationship with her partner and the intimacy that the couple enjoyed. [122] In addition, the accident has also caused difficulty in the plaintiff’s singing from muscles spasms as a result of her injury. I find the accident’s effect on the plaintiff’s ability to sing has been profound, given the importance of singing to the plaintiff throughout her life. The expert evidence of Ms. Davies and Dr. Morrison convinces me that her voice is impaired. I think that this is a significant factor apart from its effect on her income earning capacity. [123] In all the circumstances, I find that the appropriate award of general damages is $120,000.
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a chronic knee and shoulder injury.
In today’s case (Hart v. Hansma) the Plaintiff was involved in two collisions. The Defendants admitted fault for both. The Plaintiff suffered a variety of injuries including a torn meniscus, a labral tear and a variety of soft tissue injuries. These continued to post problems at the time of trial with a poor prognosis.
In assessing non-pecuniary damages at $95,000 Mr. Justice Verhoeven provided the following reasons: [54] I find that the most significant injuries suffered by the plaintiff in the accidents are as follows: 1. soft tissue injuries to his neck, particularly the right side, resulting in chronic neck pain;
chronic headaches, associated with the neck pain;
3. right shoulder injury, including a labral tear and tendonitis with a partial rotator cuff tear; and 4. left knee injury, including a meniscus tear. The foregoing injuries continue to cause significant ongoing pain and disability currently. [55] I find that the plaintiff also suffered from the following, less serious injuries sustained in the accidents: 1. right upper limp numbness and pain; 2. low back injury, and associated pain (that is not presently bothering him) in the right hip and buttock area; 3. right knee pain (although it is now substantially resolved); and 4. lefthip pain(although it is now substantially resolved)…. [65] The prognosis for full recovery is negative. It is unlikely that his neck injury will ever fully recover. There is a risk that his neck condition will deteriorate to the point where cervical discectomy surgery will be required. The headaches he suffers from are related to his neck injury. The plaintiff finds that treatment such as acupuncture, physiotherapy and the prolotherapy provide short term relief for his neck pain and headaches. He takes a variety of medications in order to allow him to cope. The planned knee surgery may provide some benefit for his left knee pain, but may have long term negative consequences, such as the risk of osteoarthritis. His shoulder condition is also chronic. The plaintiff has the choice of enduring the pain and limitation of function in his shoulder, or undergoing surgery which may offer some benefit… ] Taking into account the factors in Gillam as they apply to Mr. Hart’s circumstances, and the above awards in Prince-Wright, Hanson, Steward, and the cases cited by the defendants, adjusting for inflation, I find that an award of $95,000 is appropriate in this case.
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, confirming that Saskatchewan’s restrictive ‘no-fault’ auto insurance scheme strips the right of out of Province visitors from seeking tort compensation when injured through the wrongful driving of another in Saskatchewan.
In this week’s case (Ngo v. Luong) the parties were BC residents driving in Saskatchewan. The Defendant lost control of the vehicle flipping over and causing injury to the passenger. The Plaintiff started a lawsuit in BC Supreme Court hoping to get around Saskatchewan’s no-fault system. Mr. Justice Ehrcke found that Saskatchewan’s laws applied and stripped the Plaintiff’s right to seek damages in tort. In dismissing the claim the Court provided the following reasons: [1] Are British Columbia residents who are involved in a motor vehicle accident in Saskatchewan able to sue for damages in tort in British Columbia, or are they bound by Saskatchewan’s no-fault insurance scheme?… [27] The substantive rights of a person who is injured in a motor vehicle accident in Saskatchewan after 2002 and who did not make a tort election prior to the accident are those rights set out in Part VIII. That is true for anyone who did not make a prior tort election, regardless of whether that person is a Saskatchewan resident or not. The only difference is that the out-of-province claimant never had the possibility of making such an election. But once the accident has occurred and the claimant, whether from Saskatchewan or not, has not previously made a tort election, the claimant’s rights are those defined by Part VIII of the AAIA. Thus, the statute does not, as submitted by the plaintiff, set out a procedural election by which a claimant who has been injured in an accident can then select the means by which he or she enforces his or her rights. The rights are already defined by the statute at the moment the accident has occurred. Since the AAIA defines what the claimant’s rights are and not the means of their enforcement, the AAIA is substantive, not procedural law. [28] This categorization of the AAIA has the consequence that a British Columbia plaintiff who is injured in a Saskatchewan motor vehicle accident is in no better position bringing his or her suit in British Columbia than in Saskatchewan. The fact that this categorization eliminates a motive for forum shopping is an additional indicator that the categorization of the law as substantive is the correct categorization… [30] As I have found the AAIA to be substantive, rather than procedural law, and as the AAIA is therefore applicable to the plaintiff’s claim regardless of the fact that it is brought in a British Columbia court, the plaintiff’s request for a declaration that this action is not barred by the provisions of the AAIA is dismissed.