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$85,000 Non-Pecuniary Assessment For L3-4, L4-5 Disc Injuries

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages following a disc injury caused by a collision.
In this week’s case (Shipley v. Bye) the Plaintiff was involved in a 2010 rear end collision. The Defendant was found at fault.  The Plaintiff suffered multilevel disc issues following the crash which continued to pose some problems at the time of trial.  The Plaintiff worked at a warehouse and “was limited to unskilled or semi-skilled work“.  While he was able to eventually return to his occupation the injuries were expected to limit his ability to engage in heavy physical demands.  In assessing non-pecuniary damages at $85,000 Madam Justice Kloegman provided the following reasons:
[19]         In his report of September 17, 2013, Dr. Weiss concluded that:
1.     The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.
2.     The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.
[20]         Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.
[21]         With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident…
[25]         I have reviewed the authorities provided to me by both counsel, some of which were the same. The most factually similar cases are Esau v. Myles, 2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway, 2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from these cases that the plaintiff’s damages are in the range of $70,000 to $100,000. In my view, the plaintiff here should be awarded the sum of $85,000 for non-pecuniary damages.
 

RSS Issues Fixed

Written by admin on . Posted in Uncategorized.

Several of my readers have informed me that this site’s RSS feed has not been working for the past few weeks. I have looked into this and understand this has now been remedied.
Sorry for any inconvenience this has caused.  If anyone who subscribes via RSS can confirm receipt of this post that would be much appreciated!
 
 

Trial Re-Opened to Prove Prior Inconsistent Statement

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

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.
In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages.  In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”
The Plaintiff did not adopt the statements contained in the letter.  After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made.  The Defendant brought an application to re-open the case and call the doctor to prove the statement.  In allowing this request Mr. Justice Schultes provided the following reasons:
[18]         No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.
[19]         The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.
[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.
[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.
[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.

Microstructural Alterations in Brain Visible Following Concussive Injury

Written by admin on . Posted in Uncategorized.

Brain injuries, like chronic pain, often are described as ‘invisible injuries’ as proof of their reality often escapes diagnostic imaging.  In a revealing breakthrough findings were published this week in the Journal of Neurosurgeory showing that the brain indeed is physically altered following a concussive injury and these subtle changes are detectable on dMRI imaging.  The article dealt with hockey players however are equally applicable regardless of the origin of the physical trauma such as motor vehicle collisions.
Below are the conclusions of these recent breakthrough study:

CONCLUSIONS

Concussion during ice hockey games results in microstructural alterations that are detectable using dMRI. The alterations that the authors found suggest decreased extracellular space and decreased diffusivities in white matter tissue. This finding might be explained by swelling and/or by increased cellularity of glia cells. Even though these findings in and of themselves cannot determine whether the observed microstructural alterations are related to long-term pathology or persistent symptoms, they are important nonetheless because they establish a clearer picture of how the brain responds to concussion.
 
 

"Disturbing" Court Finding Limits ICBC Liability Following Passenger Grabbing Steering Wheel

Written by admin on . Posted in Uncategorized.

Update September 23, 2015 – The below decision was overturned  in reasons released today by the BC Court of Appeal.
___________________________
Reasons for judgement were released today by the BC Supreme Court, Chilliwack Registry, dealing with the responsibility of ICBC to pay damages following a collision caused by a passenger grabbing a steering wheel.
In today’s case (Felix v. ICBC) the Plaintiff was driving her vehicle when her boyfriend, who was riding as a passenger, “grabbed the steering wheel causing the vehicle to leave the highway and overturn.”  He was killed in the collision and the Plaintiff suffered numerous physical injuries.
The passenger was found at fault for the crash.   The Plaintiff, who was a verbatim reporter, suffered injuries which seriously compromised her abilities both vocationally and recreationally.  The matter proceeded to trial and damages of over $800,000 were assessed.  The Defendant motorist was insured with ICBC at the time.  ICBC refused to pay arguing they had no responsibility to cover the damages.   In a “disturbing” finding  Mr. Justice Saunders agreed and provided the following reasons letting ICBC off the hook:
[48] First – though it makes no difference to the outcome – I reject the plaintiff’s
contention that the estate of Mr. Hearne can obtain indemnity by virtue of
Mr. Hearne having been an insured under his own owner’s certificate. Section 63(a)
of the Revised Regulations does use the indefinite article, defining an insured as a
person named in an owner’s certificate. But it does not refer to any owner’s
certificate. Reading Part 6 of the Revised Regulation as a whole, the scheme of
insurance created thereunder clearly envisages the owner’s certificate referenced in
s. 63 to be the certificate on the at-fault vehicle, not any certificate on which an atfault
driver may be named. I agree with the defendant’s submission that the plaintiff’s
interpretation of s. 63(a) would lead to an absurdity: having one’s own owner’s
certificate would entitle one to the status of an insured in respect of any motor
vehicle, without that vehicle’s owner’s consent, and without having paid any extra
premium. I further agree that indemnity to an insured operating a motor vehicle not
described in an owner’s certificate issued to the insured is extended by operation of
s.65 of the Revised Regulation. To provide indemnity to such an insured through the
plaintiff’s interpretation would render s. 65 redundant.
[49] Second, I would not find – and it is not contended by the plaintiff – that
Mr. Hearne’s grabbing of the steering wheel constituted operation of the vehicle, with
the meaning of s. 64 of the Revised Regulation. I cannot find on the evidence that
Mr. Hearne probably intended to take control or intended to aim the vehicle in any
particular direction. Ms. Felix’s impression is that in the first two incidents of him
grabbing the wheel, Mr. Hearne was simply intending to scare her. Although the final
incident was different in that the movement of the vehicle was affected, there is not
sufficient evidence for me to infer that Mr. Hearne meant to alter its course. His
action interfered with the operation of the vehicle by Ms. Felix, but was not operation
in itself.
[58] While the Revised Regulation does, in effect, create a policy of liability
insurance, and while, as I have found, it is appropriate to apply to the Revised
Regulation the interpretive rule that coverage is to be construed broadly, the rules of
interpretation of statutory instruments must be paramount. Statutes are to be
construed liberally, but the construction and interpretation must be consistent with
the evident legislative intent. It appears to have been the intention of the governor in
council not to extend indemnity to vehicle passengers except those who may be
found to have been operating a vehicle with consent, or, in the limited case of injury
to a person who was not an occupant, to have been operating a part of the vehicle
within the meaning of s. 66.
[59] For that reason I am led to the conclusion that Mr. Hearne, as a passenger in
the plaintiff’s vehicle, was not engaged in use of the vehicle within the meaning of
s. 64. The defendant is under no obligation to indemnify the Hearne estate, and the
plaintiff’s claim must therefore fail.
[60] The consequence of this interpretation as regards designated drivers is one
which some may find disturbing. If that consequence was unintended, that is a
matter for consideration by the government.
 

No Legal Duty of Care Between "Ski Buddies"

Written by admin on . Posted in Uncategorized. 53 Comments on No Legal Duty of Care Between "Ski Buddies"

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing a novel claim; whether ‘ski buddies’ owe each other a legal duty of care.
This week’s case (Kennedy v. Coe) involved a heli-skiing expedition.  The Plaintiff’s husband and the Defendant never met before.  The skiers were to ski in a buddy system for certain runs and the two were paired up for this purpose.
During a run which did not require buddy supervision the Plaintiff’s husband had a fatal accident.  The Defendant did not notice at the time but when he realized the Plaintiff’s husband was absent he alerted the group and a search was undertaken.  The Plaintiff sued for damages arguing that had the Defendant paid better attention the search could have been undertaken sooner and possibly saved her husband’s life.
Madam Justice Fischer dismissed the claim finding the Defendant acted reasonably in the circumstances and even if he did not there was no legal duty of care in these circumstances.  In reaching this conclusions the Court provided the following reasons:
[99]         There is no question that there are many inherent risks in back-country heli-skiing such that all skiers and snowboarders who agree to be buddies should look out for each other so far as is practicable in whatever circumstances they may find themselves. However, translating a moral obligation into a legal one requires as a first step a relationship of proximity that meets the factors established in the jurisprudence I have reviewed. For the reasons I have outlined, I conclude that none of the three factors in Childs support the imposition of a positive duty to act in the circumstances of this case, and the plaintiff has failed to establish aprima facie duty of care. A skier participating in guided, back-country skiing who agrees to be assigned as a ski buddy with another skier on a particular run is not, without more, in a relationship of sufficient proximity to give rise to a duty of care to the other skier when they are not skiing as buddies on other runs. The “more” may require clear instructions from the guides or a clearly defined mutual understanding between ski buddies of their roles and responsibilities to each other in varying terrain, snow conditions and other circumstances, which would be subject to an analysis of the contrary policy considerations at stage two of the Annstest…
[121]     The plaintiff’s claim is dismissed. It is indeed very sad that Mr. Kennedy met a tragic and untimely death, but he did so after a terrible accident while participating in a high-risk sport and responsibility for his death cannot be placed on Mr. Coe.
 

Criminal Conviction Strips Defendant of Civil Liability Denial

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Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, confirming that it is an abuse of process to deny liability in a civil lawsuit for damages following a criminal conviction related to the same incident.
In today’s case (McCaffery v. Arguello) the parties were involved in a road rage incidence during which the Defendant “proceeded to intervene in the fight between Mr. McCaffery and Mr. Segundo by repeatedly striking Mr. Mccaffery with the baseball bat, causing him serious but non-life-threatening injuries to his head and wrist.”
The Defendant was criminally convicted of assault with a weapon and assault causing bodily harm.  The Plaintiff sued for damages and the Defendant denied liability.  In summarily finding the Defendant civilly liable Mr. Justice Sewell provided the following reasons:
[33]         Mr. Arguello’s counsel submits that as provocation may affect the quantum of damages It will still be necessary to hear viva voce evidence about the circumstances leading up to the assault at the assessment. That may be so. But the evidence will have no bearing on liability. I am also of the view that evidence restricted to the limited issue of provocation will not materially lengthen or complicate the assessment process.
[34]         I am also satisfied that I should grant judgment on liability notwithstanding the fact that this amounts to a severance of the issues of liability and assessment. Rule 9-7(2) permits a party to apply for judgment on an issue or generally. In my view this is an appropriate case to dispose of liability before assessing damages. Mr. Arguello clearly has no defence on the issue of liability. There is no reason to require him to re-litigate that issue.
[35]         Finally, I conclude that there is no merit in the argument that judgment cannot be granted in the absence of the defendant Mr. Segundo. I was not referred to any authority for the proposition that the plaintiff is not permitted to pursue judgment against one defendant in an assault case. If Mr. Arguello wishes to pursue a claim against Mr. Segundo for contribution, he is at liberty to do so. However I see no reason why that possibility should delay the plaintiff’s claim against him.
[36]         Accordingly I find that the plaintiff is entitled to judgment finding the defendant liable for his injuries, with damages to be assessed.

Examination For Discovery Continuations When Cases Removed From Fast Track

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Typically the BC Supreme Court rules allow examinations for discovery to last  up to 7 hours unless a case is put into the fast track Rule 15 in which case examinations are capped at 2 hours.  What happens when a case is prosecuted and discoveries take place under the fast track and then the case shifts into conventional litigation?  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such a scenario.
In this week’s case (Brown v. Dhariwal) the Plaintiff was injured in a 2008 collision.  She sued under Rule 15 and a discovery of under 2 hours was conducted which was adjourned subject to requests.  The matter then was removed from the fast track and a further discovery was sought.  The parties disagreed on the timelines and entitlement to further discovery. In concluding that the appropriate time was 7 hours of total examination counting the time already spent Madam Justice Fleming provided the following reasons:
[20]         The question then becomes did the Master err in concluding the defendants did not have a right to a further seven hours of discovery in the circumstances? In my view he did not and decided this aspect of the application correctly. The Rules of Court do not specify what happens when a case is removed from fast track. Any reconvening or continuation of the first discovery, however, would have to occur pursuant to Rule 7-2. There is no dispute that both Rules 7-2 and 15-1 provide a party to an action with a right to one examination for discovery of a party adverse in interest.
[21]         The import of the defendants’ argument that they are entitled to seven hours as a right, is that in every case where an action moves from fast track to regular and discoveries have been adjourned as opposed to finished, parties are then entitled to an additional seven hours of discovery.
[22]         Bearing in mind the object of the Rules and the implications of such an interpretation for parties who begin under the regular track, I cannot agree with this interpretation. What the defendants are entitled to is a continuation of the adjourned discovery without the constraint of the two-hour time limit that applies in the fast track.
 

"Textbook Example of Failure to Mitigate" Leads to Over $100,000 of Stripped Damages

Written by admin on . Posted in Cost of Future Care Cases, Uncategorized.

It pays to take reasonable efforts to get better.  Not only does it make good sense to take all reasonable steps to recover from injury for the sake of your well being but failing to do so can strip significant damages from a personal injury award.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, dealing with a “textbook” example of this.
In this week’s case (Maltese v. Pratap) the Plaintiff was involved in a 2008 collision.  The Defendant admitted fault.  The Plaintiff was injured which continued to cause problems by the time of trial and were expected to continue in the future.  The court noted that the Plaintiff received “remarkably similar” treatment advice which he unreasonably refused to follow.  The Court reduced the awarded damages by just over $100,000 and further stripped the Plaintiff of future care costs on the basis that “it is entriely unlikely” that the Plaintiff would follow the recommended treatments.  In reaching this conclusion Mr. Justice Kelleher provided the following reasons:
[55]         The facts of this case represent a textbook example of a failure to mitigate.  There is a consensus among the professionals who assessed and treated the plaintiff that Mr. Maltese needed to undertake a program of physical rehabilitation and fitness with a kinesiologist or personal trainer.  Their recommendations are remarkably similar.  Mr. Maltese has chosen to ignore them…
[59]         I am satisfied that the first stage of the test in Gregory has been met: I have no difficulty concluding that Mr. Maltese, having all the information at hand that he possessed at the time, ought reasonably to have undergone the recommended treatment of active rehabilitation through a kinesiologist or personal trainer.
[60]         Among other reasons, Mr. Maltese submitted that because he felt worse after attending physiotherapy, he made a decision to not pursue an active rehabilitation program. I cannot accede to this argument. The medical evidence taken as a whole also establishes that, on a balance of probabilities, there would have been a significant improvement in the plaintiff’s condition or a reduction in his damages. 
[61]         On such a clear case, a reduction of 30% in the awards for non-pecuniary damages, wage loss after his return to work and loss of future earning capacity is appropriate…
[77]         In this regard, the plaintiff relies on the fact that Drs. Travlos, le Noble, Chan and Kokan all recommended an active rehabilitation program.  The plaintiff argued that there is a consensus among these physicians that he needs to recondition himself and would benefit from the assistance of a kinesiologist or personal trainer.
[78]         But there must be a likelihood that a plaintiff will incur costs before an award can be made under this head of damages.  I conclude that it is entirely unlikely that Mr. Maltese will avail himself of these services in the future.  After all, the plaintiff has been advised by medical professionals on numerous occasions to engage in active reconditioning.  He has not done so.  I conclude an award for cost future care costs in these circumstances is inappropriate: Izony v. Weidlich, 2006 BCSC 1315 at para. 74.

"Poor, Homeless and Sick" Plaintiffs Not Negligent For Accepting Ride in Box of Pick Up Truck

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

While passengers can be found contributorily negligent for riding in the box of a pick-up truck such a finding will depend on the circumstances.  Reasons for judgment were released this week by the BC Supreme Court addressing this.
In this week’s case (Tataryn v. Browne) 14 temporary farm workers were being transported from a rural farm to downtown Kamloops.  Many of the workers were unrestrained in the box of the pick up truck.  The motorist drove negligently leaving the road tumbling down an embankment rolling over several times before coming to a stop.
The driver argued the Plaintiffs were contributorily negligent by agreeing to ride in the box of the truck.   Madam Justice Hyslop disagreed finding that the worker’s had little choice in the circumstances but to agree to the ride.  In reaching this conclusion the Court provided the following reasons:
[282]     I think it is obvious that the purpose of the box of the pickup is to carry cargo and not people….
[284]     I have dealt with the circumstances and backgrounds of each of the thirteen workers, I have come to the following conclusions:
1)    Sunshine sought workers who were residing in shelters by posting notices of the work. This was not the first time that they relied on such individuals;
2)    Mr. Goossen, the manager of Sunshine, was familiar with homeless people. He thought that in hiring these people, he was doing a kindness;
3)    Mr. Goossen and his family worked alongside these workers. On the evening of November 17, 2006, Annie, Mr. Goossen and Ms. Ebl performed the same tasks as the plaintiffs, and at the same rate of pay;
4)    The farm on which the work was done was in an unincorporated area, having no public transportation, no street lights, or sidewalks;
5)    On the evening of November 17, 2006, when the workers were to return home, it was late (after 11 p.m.) and dark and cold;
6)    The workers were poor. Most were homeless, on social assistance, and addicted to drugs or alcohol, or both. One plaintiff had a mental health condition for which he was medicated….
296]     Annie controlled the workers’ transportation and she called the shots.
[297]     The workers were poor, homeless, and sick. They were told by Annie if they did not get in the truck they would have to walk home. Walking home was not an option. It was 15 kilometres to the NLM. It was dark. It was cold. There were no sidewalks, and no public transportation. Some, if not all of the workers, were not properly clothed and Mr. Moore needed his medication.
[298]     By necessity, the workers had no option but to be passengers in the truck without seatbelts, either in the cab or the box of the pickup truck.
[299]     These thirteen men and one woman were facing conditions more severe than those facing the plaintiffs in Iannone, Bissky, Massey and Fraser.
[300]     Based on the circumstances facing each of these workers, I conclude that not one of them was contributorily negligent.