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Realtor Fee Recovery Discussed Following Collision Related Change of Residence

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If you are injured in a collision and sell your house for more suitable accommodations can the realtor commission fees be claimed as damages?  Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry addressing this.
In this week’s case (Brown v Bevan) the Plaintiff was injured in a 2009 intersection collision.  The Defendant was found fully at fault.  The Plaintiff suffered various injuries which continued to impact her at the time of trial.  She ultimately sold her multilevel townhouse and moved into a one level apartment.  The Plaintiff moved in part because she struggled walking up and down the stairs in her former residence.  She sought damages for the realtor’s commission charged in the sale arguing that this expense was incurred due to the collision.  In refusing these damages Mr. Justice Weatherill provided the following reasons:
[180]      The largest and only disputed item is the claim for $33,801.79 representing the net commissions on the sale of the plaintiff’s Gilford Street town home ($20,680), storage ($599.55), costs associated with purchasing the Homer Street property including Property Purchase Tax ($10,458.08) and moving costs ($2,064.16).
[181]     The issue is whether the costs related to moving are reasonable expenses that can be claimed. But for her injuries and resultant difficulty she had negotiating the stairs inside and outside of home, the plaintiff argues she would never have sold, moved and incurred those expenses. She relies on Rodger v. McDowell, [1994] B.C.J. No. 2009 and Piper v. Hassan, 2012 BCSC 189…
[185]     In Rodger, an award for commission expenses was made in similar circumstances where a plaintiff moved from a two level home to a one level home. The basis of the award is unclear. It apparently was based on defence submissions that “Ms. Rodgers would be adequately and appropriately compensated if she is reimbursed for real estate commission and moving expenses.”
[186]     In Piper, a claim for real estate commissions, moving costs and taxes related to changing residences was dismissed because the plaintiff’s low back injury was not proven to have been caused by the motor vehicle accident.
[187]     In this case, the plaintiff argues the expenses associated with changing residences are directly attributable to the collision and the plaintiff’s prolonged distress from having to use multiple stairs in the Gilford residence on a daily basis. She could not manage them and a move to a single level home was necessary.
[188]     In my view, these expenses are not recoverable from the defendant because:
a.       the principles of compensatory damages in tort require the plaintiff to be compensated for all reasonably foreseeable losses directly or indirectly caused by the tort (BG Checo International Ltd. at para 47);  
b.       the plaintiff is not to be placed in a position better than his or her original one. The court must determine the plaintiff’s “original position” before the tort and her “injured position” after the tort. It is the difference between these two positions that is the plaintiff’s loss (Athey at para 32).
[189]     While the accident indirectly caused the plaintiff’s left heel pain and that moving residences was a foreseeable risk, on the Athey test, the plaintiff’s claim under this head must fail. I find that the plaintiff would have moved residences to a one story home in the future in any event. These expenses would have been incurred regardless, albeit sooner (perhaps a year or two) than otherwise expected. In other words, these expenses were not incurred “but for” the collision.

Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 52 Comments on Lack of Doctor's Affidavit Thwarts Independent Medical Exam Application

While the BC Supreme Court does have the ability to compel a Plaintiff to attend a defence medical exam a proper evidentiary foundation must be established before the Court will be prepared to exercise this power.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dismissing an application due in part to a lack of evidence from the proposed physician.
In last week’s case (Rathgeber v. Freeman) the Plaintiff was injured in a collision and sued for damages and also sought Part 7 benefits from ICBC.  ICBC sent the Plaintiff to an independent medical exam with an orthopedic surgeon who provided a report addressing the Plaintiff’s injuries.  Some four years later the tort claim was still ongoing and the Defendant brought an application for a further exam with the same physician.  The Court dismissed this noting that the previous exam covered tort issues and even if there was a change of circumstances making a further report necessary there was nothing in the evidence justifying a further physical examination.  In dismissing the application the Court provided the following reasons:
[23]         In some respects, Dr. Kousaie’s November 9, 2009 report “resembles” a report in a tort claim. The doctor sets out his qualifications, for example, as well as facts and assumptions. He includes details of the accident, the plaintiff’s recreational history and comments on the possibility of academic impairment. He indicates that the examination involved a comprehensive physical examination. Those aspects of the report appear to be more consistent with a comprehensive report prepared to address the plaintiff’s complaints in a tort action.
[24]         On the other hand, the report is now four years old and while Dr. Kousaie makes reference to the neck injury, he appears to have focused on low back pain as the plaintiff’s major complaint at the time of his 2009 assessment. Dr. Kousaie’s review of the then available imaging and x-rays did not indicate any trauma to the spine although some minor disc bulges were noted in the lumbar area.
[25]         More recent assessments, and that of Dr. Twist in particular, suggest an increasing focus on the neck injury and indeed the CT scan referred to earlier shows a small circumferential disc bulge in the cervical spine, a condition not evident at the time of Dr. Kousaie’s first examination.
[26]         Taking a holistic view of the circumstances, Dr. Kousaie’s 2009 report is comprehensive and to some extent addresses issues more relevant to a tort claim than a Part 7 claim. The results of the CT scan and the shift in focus to the plaintiff’s neck injury, however, are issues which the defence may need to address. There is, however, nothing in the evidence before me to show why a further examination, rather than a review of the available materials by Dr. Kousaie or some other qualified specialist, is necessary to achieve reasonable equality with respect to medical evidence. While I do not wish to be taken as suggesting that the proposed examiner should, in all cases, provide an affidavit with respect to the necessity for a further examination, such an affidavit would have been of significant assistance to me in this case.
[27]         On the basis of the material before me, the application is dismissed.

Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

Written by admin on . Posted in Occupier's liability claims, Uncategorized. 63 Comments on Occupier's Liability Claim Dismissed After Slip and Fall On a Well Used Short Cut

BC law requires ‘occupiers’ to take reasonable steps for the safe use of their property.  The law does not require a standard of perfection as was demonstrated in reasons for judgement released this week by the BC Court of Appeal.
In this week’s case (Dandell v. Thompson Rivers University) the Plaintiff slipped and fell while walking down an “icy pathway into a grassy snow-covered hill” while walking to class.  He chose this path despite the availability of a “convenient and well-maintained sidewalk leading right to the place where he was going“.
The Plaintiff suffered severe fractures to his leg and ankle.  He sued for damages arguing that the University was at fault because they knew this shortcut was being used and that it posed a danger.  The case was dismissed at trial and the BC Court of Appeal upheld the dismissal finding that the University acted reasonably.  In reaching this conclusion the BC Court of Appeal provided the following reasons:
[4]             The building Mr. Dandell was going to when he fell opened in 1997.  It is adjacent to a roadway.  The sidewalk alongside runs parallel to the building and then cuts back slightly in a V-shape leading down to the ground level entrance.  Instead of following the sidewalk into the building, many students would cut the corner, as it were, by walking down one of the pathways worn into the grassy hill from various points at the top.  They saved 11 seconds in walking time.  The practice was ongoing year round with the incumbent risk in winter conditions that someone would slip and fall.  This was evident to the university’s administration, although there had never been a report of an injury.  Mr. Dandell had seen students using the shortcut in winter conditions lose their footing, but it did not cross his mind he might fall and be injured.  In hindsight he was, by his own candid admission, “thoughtless” in regard to his safety.  He chose to walk down what was a visibly icy slope instead of using a cleared sidewalk and, near the bottom, he fell…
[11]         I am unable to accept Mr. Dandell’s contention that, by virtue of what was said in Waldick, the university was, as a matter of law, required to eliminate the risk of a student being injured as he was.  InWaldick, the court was concerned with an injury that occurred as a consequence of an occupier’s failure to provide any safe access to a home.  The only access at the time of the incident in question was icy, slippery, and covered with a dusting of snow.  No one could access the home without being exposed to a risk of the injury that was suffered.  As is made clear in the passage quoted above, the legislation requires positive action to remove or minimize the risk of injury, not in every instance but where the circumstances warrant.  It is the circumstances in any given instance that govern what the occupier must do to take reasonable care to see that those on the premises will be reasonably safe.
[12]         Here there was a well-maintained access to the building the university intended students like Mr. Dandell to use rather than taking the shortcut.  It would have taken him only 11 more seconds.  Far from being arguably irrelevant, the university’s positive action to maintain a safe access to the building was clearly a proper and significant factor in the judge’s application of the legal standard of reasonableness in all of the circumstances. 
[13]         The trial decisions Mr. Dandell cites to support his contention that an alternative access is not necessarily conclusive of the occupier’s duty having been discharged appear to me to be instances where the risk of injury, or the alternative access, although known to the occupier, was not apparent to the person injured.  Kinnear v. Canadian Recreation Excellence (Vernon) Corp. (February 24, 2011), Vernon Docket 39746 (B.C.S.C.), is an example of an alternative access (40 seconds longer) being largely conclusive of the proper discharge of an occupier’s duty in circumstances somewhat similar to those leading to the injury Mr. Dandell suffered.  The existence of an alternative access, like the extent to which the risk taken was apparent, must be a part of all the circumstances to be considered in applying the legal standard in any given case where a choice of access – one safe, the other not – is made.

Diminished Homemaking Capacity Award Made Despite "No Evidence By Which Services Can Be Valued"

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Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, taking a practical approach to damages for diminished homemaking capacity.
In this week’s case (Savoie v. Williams) the Plaintiff was injured when the Defendant ran a stop sign causing a collision.   The crash caused soft tissue injuries and further caused pre-existing degenerative changes in the Plaintiff’s neck and upper back to be symptomatic. Although the Plaintiff missed little time from work she struggled in her daily household activities and modified/limited how these were conducted.  ICBC argued that no award should be made because there was no evidence that she was completely disabled from household tasks.  In dismissing ICBC;s argument and assessing the loss at $20,000 Mr. Justice Johnston provided the following practical reasons:
[51]         It seems to me that this argument misses the point: as unusual as it may seem to many, before the accident Ms. Savoie was someone who could properly be described as “house-proud”, in the sense that term was employed in Prednichuk v. Spencer, 2009 BCSC 1396 at para. 113 (perhaps without the elements of construction encompassed in that case). In this case, Ms. Savoie expended considerable energy, and took great pride, in maintaining her home and yard, in cooking, and in keeping vehicles clean (with the exception of her husband’s dump truck).
[52]         I agree with the Third Party that Ms. Savoie can do some, perhaps a great deal, of what she could do before the accident. The fact remains that she is impaired in her ability to do those things she did previously without restriction. I find that as a result of the injuries she suffered in the accident that she is no longer the person described by her son as “super mom”…
[55]         The plaintiff here led no evidence by which any of the household services can be valued, on either the replacement cost or opportunity cost approach. I note that the court in McTavish expressed a preference for the replacement cost approach over opportunity cost, at paras. 48-49. The plaintiff has not hired anyone to perform household tasks that she would have performed if not injured.
[56]         I note that in Rezaei v. Piedade, 2012 BCSC 1782, the court accepted $15 per hour as a value of lost housekeeping capacity, partly because it had been used as a measure in earlier decisions, but also because it accorded with evidence in that case of what a witness paid for similar services. In Smusz v. Wolfe Chevrolet Ltd., 2010 BCSC 82, the court had some evidence based on the plaintiff’s previous work as a housekeeper on which to value housekeeping or cleaning services. I do not have such evidence in this case.
[57]         I find that Ms. Savoie was initially unable to perform some household tasks. I find that she has recovered some of her ability to do household tasks but with some difficulty and some adjustments to accommodate her changed physical abilities.
[58]         I do not read either Kroeker or McTavish as preventing me from assessing damages for this aspect of Ms. Savoie’s loss as though it were a loss of amenity. Indeed, I interpret para. 69 of McTavish, quoted above, as inviting that approach.
[59]         I do not accept the Third Party’s invitation to incorporate an award for loss under this head into non-pecuniary damages. Such an approach would leave the parties with no understanding of the reasoning or result of my findings.
[60]         Largely because Ms. Savoie’s pre-accident approach to housekeeping was such that it was more a pleasure than a task to her, and her loss in this regard is more acute than many others might have experienced, I award $20,000 for loss of housekeeping capacity.

Video Surveillance Influences Chronic Soft Tissue Injury Trial

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

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating the influential use of surveillance footage in a personal injury claim.
In last week’s case (Hollows v. Wood) the Plaintiff was injured in a “serious” collision in 2009.  The Defendant admitted fault.  The Plaintiff suffered a variety of soft tissue injuries which caused a degree of chronic pain.  The Court found that the plaintiff was “decent and genuine” but that the degree of the Plaintiff’s disability was not as great as subjectively perceived.  In reaching this decision the Court was influenced by video surveillance evidence.  In commenting on this Mr. Justice McEwan provided the following reasons:
[24]         The court has had the advantage of a DVD recording of an exercise class and some other activity the plaintiff engaged in, particularly a scene in a parking lot at a shopping venue. It is very difficult to regard the person depicted in the DVD as in any significant sense, disabled, or to accept the distinctions offered by those who treated the plaintiff as convincing. Dr. Adrian’s suggestion that, for instance, a person with the ability to twist and move vigorously through a very large number of aerobic exercises, executed rapidly and repetitively, could find it hard to vacuum or to lift light loads is difficult to credit. He explained that the difference between the strenuous exercises the plaintiff is able to perform and ordinary household tasks was that when the plaintiff exercises she uses “biomechanically correct posture”, while the activities of ordinary life are unpredictable. He also noted that a gym environment does not involve prolonged standing or sitting. The evidence shows, however, that the plaintiff’s daily routine does not require either. She works from home and is quite free to move about.
[25]         Dr. Surgenor, the plaintiff’s family physician, testified to similar effect, distinguishing between the exercises in the video and household where the positions required to do household tasks could cause discomfort.
[26]         Again, the distinction seems rather forced. The plaintiff’s exercise program was clearly designed to address many different muscles and movements and it is difficult to imagine any ordinary activity that did not have a correlative exercise in the varied routines shown to the court. It must be said, as well, that the plaintiff is clearly a highly capable member of the class. She does not lag the instructor and she gives the full measure of effort the instructor demonstrates.
[27]         The evidence of Dr. Miki is, I think, central to the assessment of the plaintiff’s condition. I largely accept what he had to say about the plaintiff’s reaction to the accident, which had the twin features of immediate anxiety about the whereabouts and safety of her daughter initially, and a more prolonged period of anxiety when it was not clear whether or not her unborn son had survived or suffered serious harm. I accept that the event was traumatic and that the plaintiff has had a prolonged reaction. It has manifested in a sense of vulnerability and in a lack of trust in others, exemplified in her refusal to allow others to drive her children anywhere.
[28]         The plaintiff is hyper-vigilant and hyper-aware. I think this extends to her own assessment of her condition and leads to a belief in a pre-accident world of perfect health and fitness that effectively amplifies her present experience of muscle pain and fatigue. I fully accept the plaintiff’s evidence, and that of her husband, that she is less cheerful and easygoing than she was in the past, but, given her obvious physical capacity, I am of the view that this is largely a product of anxiety and does not reflect anything that could be called a disabling condition, or one that significantly interferes with her activities…
[35]         As I have said, I accept Dr. Miki’s analysis as descriptive of the plaintiff’s psychological condition, and think it may account, in part, for the plaintiff’s heightened awareness and descriptiveness of her pain and suffering. I accept that she suffered significant soft tissue injuries that have left her with some residual, nagging pain from time to time, but pain that is clearly not seriously inhibiting.

Previous Admissions of Potential Violence Ordered Disclosed in Personal Injury Claim Against Security Guard

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, addressing the scope of document production in a case alleging injury caused by a security guard.
In today’s case (Ash v. Zellars Inc.) the defendant security guard “arrested the plaintiff for theft“.  In the course of restraining the 16 year old girl the Defendant “used his legs as a lever to get the plaintiff to the ground”.  The plaintiff’s head struck the floor.  She lost consciousness and allegedly suffered a fractured skull.
In the course of the lawsuit the Plaintiff learned that the Defendant unsuccessfully applied to become a police officer with the RCMP, the Vancouver PD, and the Transit Police.  The Plaintiff sought the applications to be disclosed but the Defendant refused.  The Court held that while the full applications were not relevant, portions were, and ordered that the portions questioning about past violent altercations to be disclosed.  In ordering partial production Master Taylor provided the following reasons:
[14]         Plaintiff’s counsel maintains that the application forms are important due to questions asked about the applicant’s propensity for violence, propensity for inappropriate sexual behaviours and propensity for dishonesty. These questions are located at page 16 of the application form under the heading, Personal Relationships. There are thirteen questions under this heading and I set them out below with the question number from the application form:
58.       Provide details on all physical altercations you have had with a spouse or partner, or anyone associated to you in a domestic or family relationship.
59.       What is the worst emotional experience you have ever had?
60.       provide details on when you have used, or threatened to use, physical violence toward any adult person. (Sports or otherwise) (their emphasis)
61.       Provide details where you have used physical force toward a child.
62.       Provide details of the time/s where you may have paid, or been paid, for sexual activities.
63.       Have you ever sexually forced yourself on another?  Have you ever been accused of forcing yourself on another?
64.       Have you ever been involved in the sex trade industry in any capacity (i.e.) driver, receptionist, answering phones, street worker, etc)?
65.       Tell us about any time you may have retained, or been involved with the service of an escort agency, massage parlour, prostitutes (i.e. cruising for prostitutes, buying for friends, etc.)
66.       Have you ever had any sexual involvement with anyone without his or her consent?
67.       Has anyone had any sexual involvement with you without your consent?  If yes, provide details.
68.       Have you ever been involved in a sexual manner with a child (under the age of 16) regardless of your age?  If yes, provide details of all incidents. (Include ages of participants)
69.       Give the circumstances of your involvement in a sexual act that if you were caught, you may have been prosecuted. Provide details of all incidents. (i.e. sexual contact with an animal, exposing yourself in public, incest (sexual relations with a family member), sexually explicit anonymous phone calls, or peeked into someone’s window for sexual purposes etc.
70.       Provide details of your use of pornography.
[15]         The defendants submit that the information sought about an applicant for employment by the Transit Police force deals with a wide range of sensitive and intensely personal topics. As well, the application form also seeks to elicit identifying information about the applicant’s entire family members, including in-laws, former spouses, deceased parents, as well as character references. One can only imagine that the other two police forces likely seek answers to similar questions…
[17]         The defendants maintain that in order to succeed in her application, the plaintiff must first satisfy the court that the documents sought contain information which may relate to a matter in issue, and that the application is not in the nature of a fishing expedition, citing Gorse v. Straker, 2010 BCSC 119 at paragraph 16. As Macaulay J. said in Gorse, the formulation of this test stems from the well-known decision ofPeruvian Guano (1882), 11 Q.B.D. 55 at pp. 62-63 (C.A.) and permits access to documents that relate to a matter in issue indirectly as well as directly…
[20]         Taking into account that I have determined the documents sought relate only to a matter indirectly in issue, I have to now decide whether any of the information from the application forms is to be provided to the plaintiff.
[21]         In my view, questions 58 and 60 from the employment application form for the Metro Vancouver Transit Police, as set out above, and their answers are such as was discussed in Przybysz v. Crowe, 2011 BCSC 731 at paragraphs 27 -28, as those documents which assist in a train of enquiry as contemplated in Peruvian Guano. The others, in my view, are merely in the nature of a fishing expedition.
[22]         Accordingly, I order that the defendants provide to the plaintiff copies of the personal defendant’s applications to the three stated police forces with all answers completely redacted but for questions 58 and 60 and the answers thereto as provided by Magdaluyo, or similar equivalents in the application forms for employment by the Vancouver Police Department and the RCMP.

Court Criticizes ICBC's "Disappointing" Take On Diminished Earning Capacity Claim

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

The factors to be considered when assessing damages for ‘diminished earning capacity’ are well established in law.  Reasons for judgement were released today  by the BC Supreme Court, Kelowna Registry, addressing this and criticizing ICBC’s approach when valuing this loss.
In this week’s case (Tarasevich v.Samsam) the “plaintiff’s hips and sacrum were seriously injured in a motor vehicle accident“.  The injury was expected to pose long term problems requiring serial surgeries to address these issues in the future.   The injury caused chronic pain and impacted the Plaintiff’s working tolerance.   Despite this, ICBC argued that the long term injury will only have  a modest impact on the Plaintiff’s earning capacity because “the plaintiff was bound to become a sedentary office worker in any event and that because her physiatrist has said that despite her injuries she can engage in a full-time sedentary occupation, she will therefore not suffer a significant loss of future income“.
Mr. Justice Rogers rejected ICBC’s position and provided the following criticism:
[52]         To repeat: the defence’s approach to this head of damages is to assert that the plaintiff was going to be a sedentary office worker in any event and that because the evidence shows that she is likely to now follow that career path, she cannot be said to have suffered a loss. The defence asserts this proposition notwithstanding the uncontroverted evidence that the plaintiff’s hip and lower back injuries markedly limit her ability to do the kind of work that she actually did, and did well, before her injury.
[53]         It is disappointing that in this day and age, nearly 30 years after Brown v. Golaiy, a defendant would cleave to such a wrong-headed approach to a claim for reduction of earning capacity…
[56]         The plaintiff was a young person when she was injured. It is possible that she would have enjoyed sufficient success in retail sales and management that she would not have gone on to work in an office environment. It is equally possible that she would have taken office administration courses while still working full or part‑time and would have gone on to find employment in an office. The plaintiff’s history in the labour force was too brief to support a confident prediction of the direction her future would take. One cannot, therefore, say that the plaintiff’s loss may be calculated by measuring the delta between pre- and post-injury income streams. For that reason, I find that assessment is the appropriate methodology for this case.
[57]         The plaintiff has made a genuine effort to engage in work. She has tried and failed to work as housecleaner. She has tried and failed to work full-time in the same type of sales job she did before the accident. If the plaintiff does not pursue sedentary work but continues to work in sales or some other occupation that requires her to be on her feet for the majority of the day, I find that her stated preference for part-time work is reasonable given her symptoms and limitations. If she works part-time in a sales position, she will likely have more energy to look after her household and to participate in social activities and such recreational pursuits as she can still do. Working part-time will allow her to achieve some reasonable degree of balance between earning a living and having a life to live.
[58]         On the other hand, I find that as a result of her injuries the plaintiff’s best course of action will be to earn a Grade 12 diploma or its equivalent and then to enroll in a course of post-secondary that will qualify her for employment in an office environment. Even in an office environment, the plaintiff will be a generally less desirable employee than her able-bodied colleagues. In order to work full-time, the plaintiff will need a sympathetic employer who is willing to accommodate her limitations.
[59]         In either case, the plaintiff’s participation in the labour force will be interrupted by serial hip replacement surgeries.
[60]         For these reasons, I have concluded that the proper award for reduction of the plaintiff’s earning capacity is $250,000.

A Draw is a Loss in the World of Tort Litigation

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized. 58 Comments on A Draw is a Loss in the World of Tort Litigation

When suing for damages for harm caused by others a Court needs to be satisfied that the allgations fueling the lawsuit took place.  In the case of opposing versions of events if a Court can not pick one over the other the claim will be dismissed.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, with such an outcome.
In this week’s case (Fergusson v. Eyrl) the Plaintiff alleged “that he was sexually assaulted on numerous occasions” by the Defendant.  The Defendant denied the allegations in their entirety.  Ultimately the Court concluded that both parties versions of events were plausible and given that one could not be preferred over the other the claim was dismissed.  In dismissing the claim Mr. Justice Melnick provided the following reasons:
[50]         In sum, there is compelling evidence to suggest both that the assaults alleged occurred and that they did not. But, at its best, the case of Mr. Fergusson is evenly balanced with that of Mr. Eyrl. I am not satisfied that it is more probable than not that the claims of Mr. Fergusson against Mr. Eyrl have been made out.

Private "Non Urgent" MRI Cost Denied as Disbursement

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Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:
[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:
For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.
[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:
Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.
[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…
[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.
[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.
[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.
[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.