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Subjective Soft Tissue Injuries and Judicial Scrutiny

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

Last year I criticized the often recited judicial passage stating that ““…the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery…”  and pointing out that these comments should no longer be used given Supreme Court of Canada’s reasons in FH v. McDougall.
Reasons for judgement were released this week by the BC Supreme Court (Prince v. Quinn) addressing a Court’s role when dealing with subjective injuries.  Mr. Justice Williams provided the following comments which, in my view, would do well to substitute the above passage in the context of a chronic soft tissue injury case:
[25]         With respect, as regards this latter point, it seems to me that this is an approach that must be considered with care. Taken to its ultimate conclusion, it would, in many cases, quite unfairly put a plaintiff in a position where proving a claim would be exceedingly difficult and verging on impossible.
[26]         In my view, the point to be observed is this: where a plaintiff’s claim is founded quite substantially on self-reported evidence, it is necessary for the trier of fact to scrutinize the plaintiff’s evidence carefully and evaluate it in the light of other evidence, such as the circumstances of the collision, other relevant information concerning the plaintiff’s activities and statements made by the plaintiff on other occasions. However, where the evidence of physical injury is substantially based on subjective evidence – the testimony of the plaintiff – that should not constitute an effective barrier to proof of a claim.
[27]         In the final analysis, it is the court’s duty to examine the evidence carefully and critically. That is what I have done in this case.

$45,000 Non-Pecuniary Assessment for Lingering Soft Tissue Injuries to Neck and Back

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Kamloops Registry, assessing damages for chronic soft tissue injuries caused by a motor vehicle collision.
In this week’s case (Sekhon v. Nguyen) the Plaintiff was involved in a 2006 rear-end collision.  He was 14 at the time.  At trial it was found that “there has been a certain amount of exaggeration…with respect to his injuries” and his claim for chronic headaches was rejected.  Despite this, the Court accepted that the Plaintiff suffered from soft tissue injuries to his neck and back and that the prognosis for full recovery was guarded.  In assessing non-pecuniary loss at $45,000 Madam Justice Ross provided the following reasons:
[49]         I am satisfied that Mr. Sekhon suffered soft tissue injuries to his neck and back in the motor vehicle accident and that as a result he has suffered from headache, neck and back pain. These injuries have gradually but not completely resolved. The prognosis for complete recovery is guarded. I find further that to the extent to which he has suffered from headaches of the kind he described experiencing after August 2009, he has failed to meet the burden to establish causation. I find that he has not suffered from headaches of the frequency and intensity described in his testimony as occurring after August 2009 as a result of injuries suffered in the accident.
[50]         The injuries have interfered with Mr. Sekhon’s enjoyment of many of the activities he engaged in prior to the accident. However, he remains an active young man, able to work, attend school and enjoy many recreational activities.
[51]         In all of the circumstances, I award $45,000 for non-pecuniary loss.

Preliminary Class Action Fee Approval Not Appropriate Absent "Exceptional Circumstances"

Written by admin on . Posted in Uncategorized.

Section 38 of BC’s Class Proceedings Act requires judicial approval with respect to any class action fee agreement prior to it being enforceable .  Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the timing of such approval. In short the Court held that ‘preliminary’ approval prior to settlement/judgement is not appropriate absent “exceptional” circumstances.
In this week’s case (Plimmer v. Google, Inc.) the Plaintiff filed a proposed class action against Google. The Plaintiff’s lawyer sought a “preliminary but not final approval of the Plaintiff’s fee agreement“.  Madam Justice Griffin found that such approval was not warranted in the usual course and provided the following feedback:
[55]         I conclude that preliminary approval of fee arrangements in class proceedings in B.C. should only be sought in exceptional circumstances, such as where there is a novel and potentially controversial form of agreement of which the court should be apprised in its supervisory role, to address and avoid the potential that the agreement could later be seen as affecting the integrity of the legal process or the proper administration of justice.  Over time as case law develops and gives guidance to counsel and representative plaintiffs, there will be less occasion for these exceptional circumstances to arise. 
[56]         Those exceptional circumstances do not exist here with respect to the fairness and reasonableness of the fee agreement in general.  I consider it inappropriate to address the approval of the fee agreement in slices, and I conclude that it is premature to consider these general issues at this early stage.
[57]         The role of the court is not to give preliminary legal advice to the plaintiff or plaintiff’s counsel, and the court ought not to be put in the position of making what are essentially moot rulings without all of the facts before it.
[58]         For the most part, the court’s assessment of the fee agreement in this case should await another day when the court will have heard all of the relevant evidence including as to the risks, merits and complexities of the case, and when other class members will have received notice of the fee agreement. 
 
The Court went on to note that one issue did deserve preliminary comment, and that was an order with respect to fee splitting agreements amongst various lawyers.  The Court held that there was nothing wrong in principle with such agreements in a BC class action lawsuit and provided the following reasons:
[59]         I make the above general observations subject to one aspect of the fee agreement which warrants judicial consideration now.  That aspect concerns the plaintiff lawyers’ arrangements to fee-split with assisting lawyers who are based in the United States.
[60]         The case law regarding Canadian counsel cooperating in class proceedings with lawyers based in the United States is evolving.  I recognize that the plaintiff’s B.C. counsel are being prudent by advising the court of the fee-splitting arrangements they have entered into precisely because the case law is developing and such arrangements could affect the administration of justice. 
[61]         I have concluded that the novelty and potentially controversial nature of these types of arrangements are exceptional circumstances which justify the court embarking on the supervisory task of reviewing the fee agreement in respect of its arrangements to split the plaintiff’s counsel fees with lawyers based in the United States…
[78]         In conclusion, leaving aside the percentage split which is not for this Court to approve at this time, I declare as an interim order that this Court approves in principle of the fee-splitting arrangement between the plaintiff’s B.C. counsel of record, and the Assisting Lawyers, in substantially the terms as described to this Court.
[79]         I considered stating this declaration in the negative, namely, that this Court does not disapprove of the fee-splitting arrangement, to reinforce the limitations in the supervisory discretion I have exercised.  The point I wish to emphasize is that the application for final approval of the fee agreement should proceed as a hearing de novo when it comes to the end of the case. 

At-Scene Admission Tips the Scales at Liability Trial

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 56 Comments on At-Scene Admission Tips the Scales at Liability Trial

As previously discussed, admissions in the aftermath of a collision can be important evidence when a liability case proceeds to trial.  Reasons for judgement were released this week where such evidence was the crucial tipping point.
In this week’s case (Koshman v. Brodis) the parties were involved in an intersection collision. Both claimed to have a green light.  Both had independent witnesses confirming their versions of events.  Ultimately the Court held that while it was a close call the Plaintiff likely had the green light and held the Defendant fully at fault.  In reaching this conclusion the Mr. Justice Ehrcke provided great weight to an at-scene admission made by the Defendant.  The following reasons were provided:
[26]         A determination should not be made simply by counting the number of witnesses on each side, nor is the testimony of an off-duty police officer necessarily of more weight than that of a civilian witness.
[27]         Clearly, different people at the scene saw things differently, and have different memories of how this accident occurred. That is not particularly unusual in a trial such as this.
[28]         What is somewhat unusual in this case is that both the plaintiff and a neutral civilian witness, Mr. Fontaine, testified that after the collision the defendant acknowledged responsibility. The plaintiff testified that the defendant said to her at the scene that the accident was her fault. The defendant testified that if she said this, she did not mean to imply that she admitted liability. Mr. Fontaine testified that the defendant said to him, “Oh my God, I’m so sorry, I didn’t see the red light.” The defendant denies having said those words.
[29]         I do not accept the defendant’s explanation for what she said to the plaintiff at the accident scene, and I do not believe her denial of what she said to Mr. Fontaine. I am satisfied on a balance of probabilities that she did say these things, and she did so because she was aware that she had entered the intersection against a red light.
One matter of interest that did not appear to be canvassed was whether this admission should have been admitted give section 2 of BC’s Apology Act which holds that an apology “does not constitute an express or implied admission of fault or liability by the person in connection with that matter,” and that it “must not be taken into account in any determination of fault or liability in connection with that matter.”

Admissibility of "Incompetent" Litigant Hearsay Canvassed in BC Injury Claim

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

Adding to this site’s archived caselaw addressing points of civil procedure, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the admissibility of various out of Court statements made by a Plaintiff involved in injury litigation.
In this week’s case (Saadati v. Moorehead) the Plaintiff was injured in a 2005 collision and sued for damages.  He was also involved in subsequent and previous collisions not before the Court.  Prior to trial the Plaintiff was declared “mentally incompetent” and could not testify.  In the course of the trial both the Plaintiff and the Defendant sought to introduce various pre-trial statements into evidence as exceptions to the hearsay rule.  The decision is worth reviewing in full for the Court’s analysis.  The statements considered included
1. an excited utterance at the scene of the collision
2.  statements to his GP, kinesiologist and treating specialist
3. statements to friends and family
4.  statements to an ICBC adjuster
5. paycheque stubs, pay statements, pay sheets and tax returns
6. Admissions against interest

11 Year Old Successfully Sued Following School Ground Horseplay

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with fault for a school-ground injury.
In this week’s case (Gu v. Frisen) the 11 year old plaintiff was injured in 2008 when she was carrying a friend, piggyback-style, during recess.  At the same time the defendant pushed the girls, with no intetion of ill-will but rather “to make the girls laugh”.  Unfortunately the Plaintiff fell over and broke her arm.
The Plaintiff sued the Defendant, his parents and the School District.  The Claims were all dismissed except the claim against the 11 year old defendant.  In finding him legally responsible for the injury Mr. Justice Schultes provided the following reasons:
[23]         I am satisfied that Liam did not put his mind to the risk before he jogged up behind Elizabeth and pushed her. The question is whether, objectively viewed, he should have.
[24]         He was 11 years old at the time of this incident. There was no evidence that he was of less than normal intelligence for his age. As to his experience, making the assumption most favourable to his position, which is that comparing him to children of the same “experience” is broad enough to include his maturity and impulsivity, I think that a child with those similar attributes would still have foreseen that, if he were running at a fast jog, even the gentle pushing from behind of another child who was being carried piggyback risked both the top and bottom person falling over and being injured in some way in the fall. It is a matter of the physical reaction of human bodies to the application of force — a kind of knowledge that is acquired by all children on the playground at a very young age.
[25]         The fact that the injury to Jacqueline turned out to be more serious than a child in Liam’s circumstances might have anticipated does not undermine liability. Madam Justice Bennett summarized the applicable law in Hussack v. Chilliwack School District No. 33, 2011 BCCA 258, at para. 71:
[71]      It is not necessary for the plaintiff to show that the precise injury or the full extent of the injury was reasonably foreseeable. What he must show is that the type or kind of injury was reasonably foreseeable:  Hughes v. Lord Advocate, [1963] UKHL 1; Jolley v. Sutton London Borough Council, [2000] UKHL 31; Ontario (Minister of Highways) v. Côté, [1976] 1 S.C.R. 595.
[26]         This mishap is unlike the rather freakish accidents in which the liability of older children and adolescents for negligence was denied, based on a lack of foreseeability, in McHale v. Watson (1966), 115 C.L.R. 199 (Aus. H.C.) (a thrown piece of welding rod ricocheting off a post) and Mullin v. Richards, [1998] 1 All E.R. 920 (C.A.) (a piece of a plastic ruler breaking off during play sword-fighting). In both cases, childish horseplay led to serious eye injuries, but the defendants’ original ill-advised actions set in motion further physical effects that the judges concluded could not have been anticipated.
[27]         This case, I have said, required only the rudimentary foresight that a person who is pushed from behind might fall over and in doing so get injured, something that was well within the capacities of a child in Liam’s situation.
[28]         As a result I find him liable for the accident

$90,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome With Poor Prognosis

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s archived posts of BC non-pecuniary damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury with a poor prognosis.
In last week’s case (Gillam v. Wiebe) the Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained various injuries including a Thoracic Outlet Syndrome with a poor prognosis for full recovery. In assessing non-pecuniary damages at $90,000 Mr. Justice Verhoeven provided the following reasons:
65]         In summary, I find that the plaintiff suffered the following injuries due to the accident:  chronic right sided neck and shoulder pain, thoracic outlet syndrome, and headaches, all as described above. She has also suffered from deterioration in her mood and disposition, interference with sleep, and significant weight gain.
[66]         Her headache condition is gradually improving but she continues to suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms also continue to cause pain and limitation of function. In general, the prognosis for the plaintiff’s conditions is poor. It is likely that she will have a degree of limitation of function and pain permanently…
[85]         Some context is also provided by the video surveillance evidence. Video surveillance was conducted on 3 separate days in April and May, 2012. The video evidence shows the plaintiff carrying out ordinary activities such as pumping gas, entering and exiting her vehicle, driving, and also shopping and eating a picnic lunch with companions. She displays no obvious sign of discomfort or disability and generally looks comfortable and able to carry out such moderate activities.
[86]         Nevertheless, the plaintiff suffers from a limitation of function. She suffers from pain in her neck and shoulder which will likely never completely disappear. She is unlikely ever to be symptom free in relation to her TOS condition. She continues to suffer from frequent headaches for which the prognosis is negative for complete resolution. She is no longer capable of heavy work, and must avoid other activities that could aggravate her neck and shoulder injuries and her TOS. She is restricted in terms of employment, domestic and recreational activities. There has been a very significant change in the plaintiff’s overall lifestyle. There have been emotional consequences to her injuries. Her injuries have also made caring for her daughter much more difficult.
[87]         While of course each case is unique, other court cases provide useful guidance with respect to the proper quantum of the award. Consistency with other decisions of the courts is desirable. The award must be fair to both sides.
[88]         The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34 ($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit, 2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the range for non-pecuniary damages in this case is $95,000 to $135,000. The defence also relies upon Cimino, and Durand. Additionally, the defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000), Langley v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC 1129 ($40,000). The defence submits thatDriscoll and Langley most closely equate to this case, and submits that an appropriate award is $60,000.
[89]         Having reviewed these authorities, in my view an appropriate award for non-pecuniary loss in this case is $90,000.

ICBC Application To Withdraw Liability Admission Denied

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

Court Finds ICBC's "Claim Payment Proposal" Extends Limitation Period

Written by admin on . Posted in Uncategorized. 61 Comments on Court Finds ICBC's "Claim Payment Proposal" Extends Limitation Period


When you can’t agree with ICBC as to the value of your claim they sometimes provide a “Claim Payment Proposal” which, unlike a conventional settlement, does not resolve a claim but leaves the door open to litigation.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, considering the effect of such a proposal on a limitation period.
In this week’s case (Coombs v. LeBlond Estate) the Plaintiff was injured in a 2008 collision.  The Plaintiff and ICBC could not agree on the value of the claim and ICBC provided a Claim Payment Proposal.  The Plaintiff eventually sued for damages but did so after the expiry of his limitation period. ICBC applied  to dismiss the lawsuit on this basis.  The Plaintiff argued that the Claim Payment Proposal, despite being marked ‘without prejudice‘ was an admissible confirmation of the cause of action extending the limitation period.  Mr. Justice Betton agreed and dismissed ICBC’s application.  In doing so the Court provided the following reasons:
[23]         The act of marking a document with the clause “without prejudice” alone is insufficient to determine whether a document is privileged. Rather, the two conditions stated in Belanger must be present for a “without prejudice” letter to be privileged. There must be:
(a)      a dispute or negotiation between two or more parties, and;
(b)      terms of settlement offered.
[24]         There is no issue with condition (a) in the present case. The privilege issue turns on whether terms of settlement were offered by ICBC in their letter.
[25]         In my view, neither the letter of December 8, 2008 nor the attached claim payment proposal contain such terms. The defendants stress that there are terms attached, but they are not, in my view, terms of settlement.
[26]         In Rogic the first letter attaching the full and final release clearly communicated that the terms of settlement would be payment of $5,000 in exchange for a full and final release. If that release was signed, the action was concluded; accordingly, the letter was not admissible.
[27]         The second letter, as was noted in paragraph 32, did not contain any such terms and was admissible; however, it did not constitute a confirmation of a cause of action.
[28]         The defendants also cite Strassegger v. Harrison Hot Springs Resort Hotel Ltd., [1999] B.C.J. No. 1878 (S.C.) in support of their position. I find this case is not helpful to the defendants’ cause. Strasseggerwas decided on the ground that the correspondence could not be relied upon as confirmation of the action, not whether the document was privileged: see paragraph 11.
[29]         Here the effect of the letter, the cheque, and the claim payment proposal is to confirm the cause of action. It also informs the plaintiff as to ICBC’s view that the money represents a reasonable offer of settlement. It does not, however, impose any terms for the settlement of the action. It provides only that there be an acknowledgement of the receipt of the monies and that they would be deducted from any future recovery.
[30]         In my view, even if the plaintiff had executed the claim payment proposal, the terms contained in it are not the sort of terms contemplated by the Court of Appeal in Belanger or this court in Rogic as being terms of settlement of the dispute or negotiation.
[31]         Accordingly, the application of the defendants is dismissed.