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Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

Written by admin on . Posted in ICBC Headache Cases, Uncategorized. 51 Comments on Court Considers It "Unsafe" To Rely on Defence Doctor's Opinion In Chronic Headache Case

In my continued efforts to highlight judicial scrutiny of expert testimony in BC injury litigation, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, finding an expert “displayed a somewhat compromised objectivity” and that it was “unsafe” to rely on his opinion.
In this week’s case (Smith v. Moshrefzadeh) the 54 year old plaintiff was injured in a rear end collision in 2008.  As a result she suffered from soft tissue injuries to her neck and shoulders which caused chronic headaches.  At trial the Defendant produced an orthopaedic surgeon who provided opinion evidence that the probability that the crash resulted in the chronic symptoms was “negligible“.  Madam Justice Dardi did not accept this evidence and provided the following critical comments:
[62]         I accept the opinions of Dr. Helper, Dr. Robinson and Dr. Craig and, where they differed, I prefer their opinions to that of Dr. Wahl.  I found each of Dr. Robinson, Dr. Helper, and Dr. Craig, who are very well-qualified and experienced practitioners, to be careful and fair-minded in their testimony.  Their opinions, without exception, were not weakened in cross-examination.  Each of the doctors persuasively discounted Dr. Wahl’s opinion that the degeneration of Ms. Smith’s cervical spine shown on her x-rays is the cause of her current symptoms.  While Dr. Wahl is no doubt a well-qualified orthopaedic surgeon, his practice is focused on the surgical management, not the medical management, of the spine.  Dr. Wahl clearly had not reviewed Ms. Smith’s medical records as carefully as the other expert witnesses and as I mentioned earlier his report was predicated on a misconception as to the timing  of the onset of Ms. Smith’s symptoms.  Given the significant concessions he made in cross-examination and the Court’s impression that he displayed a somewhat compromised objectivity in preparing his report, I consider it unsafe to rely on his opinion.
In assessing non-pecuniary damages at $80,000 the court provided the following reasons:
[65]         In summary on this point, Ms. Smith’s chronic headaches and neck and upper back pain and discomfort which were caused by the accident have persisted for some three and a half years.  She experiences episodic flare-ups.  The pain fluctuates in intensity and is aggravated by physical activity.  Ms. Smith’s symptoms are exacerbated by the physical demands of the commercial salmon and herring fisheries.  She can no longer engage in the prawn fishery.  She has constant and daily headaches which vary in intensity.  The headaches are usually of a mild to moderate severity, but at least a few times per week they become severe enough that she needs to rest in a quiet environment.  For the most part, however, even though she describes feeling like she is “hanging on by a thread”, she forces herself to carry on with her fishing work and with maintaining her household routines and family life.  In order to carry on, she takes prescription medication on a daily basis.
[66]         There is a possibility that, by undertaking the treatments recommended by the specialists who testified at trial, Ms. Smith will experience some improvement in her symptoms and will be able to manage her pain and discomfort more effectively.  However, I find that it is unlikely that she will make a full recovery to her pre-accident status…
[76]         I have reviewed all of the authorities provided by both counsel.  Although the cases are instructive, I do not propose to review them in detail as they only provide general guidelines.  In broad terms, the cases relied upon by the defence involve plaintiffs with symptoms that had significantly improved by trial.  In considering Ms. Smith’s particular circumstances, I conclude that a fair and reasonable award for non-pecuniary damages is $80,000.

$300,000 Non-Pecuniary Assessment For Severe Brain and Orthopaedic Injuries

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

The current judicial cap for non-pecuniary damages in Canada for negligently caused injuries rests at  just over $342,000.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, discussing whether such an assessment was appropriate for a severe traumatic brain injury coupled with multiple orthopaedic injuries.
In last week’s case (Clost v. Relkie) the Plaintiff was involved in a 2009 collision described by the trial judge as “a shocking scene of mayhem”.  The Plaintiff suffered a severe traumatic brain injury and multiple bone fractures   These disabled her for life from her own occupation as a pharmacy technician.  The Plaintiff’s limitations were profound enough that a Committee was appointed to manage her affairs.  Despite this she made a satisfactory recovery to the point where she gained a fair level of independence in her daily life.  In assessing non-pecuniary damages at $300,000 Madam Justice Baker provided the following reasons:
[437]     Ms. Clost is seeking an award for non-pecuniary damages at the upper limit set by the Supreme Court of Canada.  Counsel agreed the upper limit, adjusted for inflation, was $342,500 at time of trial.  The defendants submitted that an award of $175,000 to $225,000 would adequately compensate Ms. Clost for the pain, suffering, and loss of enjoyment of life caused by the accident injuries. 
[438]     The submissions made by counsel largely focused on the issue of whether Ms. Clost’s injuries should be characterized as “catastrophic” ? the term most often used by judges who have awarded the upper limit for non-pecuniary damages.  The plaintiff says “catastrophic” is merely a synonym for “severe” or “devastating”; the defendants submit that given the significant recovery Ms. Clost has made, particularly in relation to her cognitive functioning, the injuries have not had a “catastrophic” impact on her life…
[442]     Ms. Clost does not, as did many of the plaintiffs in the cases referred to by plaintiff’s counsel, require constant supervision for her own protection.  She continues to enjoy a considerable degree of independence and to exercise control over most aspects of her life.   She has returned to living in her own home.  She is able to do most activities of daily living without assistance.  She is entirely capable of bathing, toileting, dressing and feeding herself.  She can walk, she can swim, she can drive, she can use a computer; she can cook, she can bake, she can shop ? for necessities and for enjoyment.  She goes out to the library; for lunch and visits with friends.  She can still do many household and outdoor chores although there are also some she cannot do or can only do in a modified way or with assistance.  She has continued to manage her own finances, taking care of banking and bill-paying on-line, as she did before the accident.  She has not demonstrated a propensity to engage in behaviours that make her a danger to herself or others, as was the case with the plaintiffs in Spehar andCoulter.   
[443]     I am of the view, however, that Ms. Clost has experienced pain, suffering and loss of enjoyment of life and will continue to experience losses for which she is entitled to very significant compensation and to an award above the range suggested by defendants’ counsel.  Having considered the various authorities, I have concluded that the appropriate award for non-pecuniary damages in this case is $300,000.
[444]     I have already reviewed the evidence of Ms. Clost’s numerous serious orthopedic injuries and the details of the injuries to her brain.  She was in a coma for a month and only gradually returned to consciousness.  She has a gap in her memory of events for some period before and after the accident.  She required two major orthopaedic surgeries within the month following the accident to repair numerous fractures.  I have concluded she will require at least one and possibly more surgeries in future to fuse the joint in her left foot and ankle; to remove hardware in the ankle and possibly in her wrists as well; and a possible ankle replacement surgery.   Her orthopedic injuries caused her considerable pain; and she was essentially confined to a hospital bed and unable to bear weight or to walk for several months.  There was a period during which she was unable to use her arms due to injuries to her arms, wrists and hands.   
[445]     In total, Ms. Clost was confined to one type of hospital or another for five months following the accident.  Her rehabilitation was ongoing at time of trial.  She continues to have pain or discomfort in many parts of her body.  She has frequent headaches.  The most significant and frequent sources of pain are her left foot and ankle; she also has swelling there and the injury disables her from walking or standing for extended periods of time.  Although a fusion of the joint may reduce the amount of discomfort she experiences, the medical opinions I accept indicate that she is unlikely to be pain-free.  At time of trial she still needed to take strong medications to control her pain and to help her to sleep.   
 

Known Poor Road Conditions Defeat Inevitable Accident Defence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 47 Comments on Known Poor Road Conditions Defeat Inevitable Accident Defence

As previously discussed, although a driver can sometimes be faultless after rear-ending another vehicle, such a result is rare.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with a motorist trying to escape blame following a rear end collision.
In last week’s case (Vo v. Michl) the plaintiff pulled onto Kingsway from a parked position and proceeded to to the left hand lane.  At the same time the Defendant was proceeding in the same direction and saw the Plaintiff pull into his lane and brake ‘some four or five seconds’ before the vehicles impacted.  The Defendant argued that he could not avoid the collision due to icy  road conditions.  Mr. Justice Savage rejected this argument finding the Defendant was aware of the poor road conditions well prior to the impact and should have adjusted his driving accordingly.  In finding the Defendant fully liable for the impact the Court provided the following reasons:
[16]         I accept that Mr. Vo had his left turn signal on at that point which was his evidence and is not contradicted by Mr. Michl. Mr. Michl applied the brakes but because of the road conditions did not slow appreciably before impact. The road conditions were apparent to him as he had been driving in those conditions. He knew it was icy. This is not a case, for example, of their being a patch of “black ice” in otherwise deceptively benign conditions, as was the case in Borthwick v. Campa (1989), 67 Alta. L.R. (2d) 123 (Q.B.).
[17]         Mr. Michl was negligent in driving too quickly for the road conditions in traffic on Kingsway. There is no suggestion here that Mr. Vo’s actions in turning onto Kingsway were sudden and precipitous, as in some of the other cases referenced by the defence.
[18]         The defendant raises s. 151(a), and 170 of the Motor Vehicle Act, R.S.B.C. 1996, c.318, and s. 7.05(1) of the Motor Vehicle Act Regulations, B.C. Regulation 26/58. I accept the evidence of Mr. Vo that he checked the position of the westbound traffic before he made this turn from the parked position onto Kingsway, and the westbound vehicles were well back at that point. The defence has said all that could be said to support their position, however, in my opinion Mr. Michl is 100% to blame for the accident.

Short Leave Application Denied in Case of "Manufactured Urgency"

Written by admin on . Posted in BCSC Civil Rule 8, Uncategorized. 113 Comments on Short Leave Application Denied in Case of "Manufactured Urgency"


Rule 8-5 of the BC Supreme Court Rules allows an application to be brought on short notice in cases of “urgency”.
A transcript of proceedings from the BC Supreme Court, Nanaimo Registry, was recently shared with me denying a short leave application in a case of “manufactured urgency”.
In the recent case (Thuler v. Garcia) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff exchanged various expert reports in compliance with the timelines set out in the Rules of Court.  The Defendant requested that the Plaintiff attend a Defence Medical Exam with an orthopaedic surgeon to obtain a responsive report.  The Plaintiff refused to attend unless compelled by the Court.
The Defendant brought a short leave application two days before the scheduled Defence Medical Exam seeking permission to bring the main application that same day.  The Plaintiff opposed short leave being granted arguing  “the reason that I say that this is manufactured urgency is that there is six weeks in order to have a response report prepared.  If it is the case that the plaintiff is eventually ordered to attend that independent medical exam, then there is no reason that this couldn’t be brought within the normal timelines”
When pressed on the point of urgency the defendant countered that “It’s urgent in the sense that we would like to just get it done.”
Mr. Justice Silverman agreed no urgency existed and dismissed the short leave application.  In doing so the Court provided the following comments to the Defendant:
“All right.  I’m against you on that…In my view, it’s not urgent.  You’ve got enough time to do it by giving appropriate notice.  The matter can be heard on that basis.  It may well be you’ll still be entitled to your order if the plaintiff is not willing to go, but in my view, it’s not urgent to require short leave so that I am denying that application“.
To my knowledge this Excerpt of Proceedings is not publicly available but as always I am happy to provide a copy to anyone who contacts me and requests one.

$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision

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

Adding to this site’s database of archives caselaw addressing psychological injuries, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages following psychological injuries following a severe motor vehicle collision.
In last week’s case (Rizzotti v. Doe) the Plaintiff was injured in a 2005 head-on collision.   The crash was significant killing the driver of the offending vehicle.  Fault was admitted.  The Plaintiff suffered from psychological injuries following this crash including PTSD, depression and an adjustment disorder.
The Plaintiff’s injuries were aggravated in two subsequent collisions.  All three cases were heard together and damages were assessed globally.  In assessing non-pecuniary damages at $110,000 Mr. Justice Tindale provided the following reasons:

]The plaintiff was clearly involved in a serious head-on collision in 2005. She sustained injuries of a physical nature and a psychological nature. The evidence is clear that the first accident caused the majority of the injuries to the plaintiff while the other two accidents exacerbated her condition.

[76]The medical evidence is clear that the physical injuries were caused by the accidents. The medical evidence is also clear that her psychological injuries were caused by the accidents.

[77]Dr. Anderson diagnosed the plaintiff as having ongoing depressive symptoms consistent with a diagnosis of chronic adjustment disorder with depressed mood. He also diagnosed the plaintiff with having chronic post-traumatic stress disorder in partial remission.

[78]The psychologist, Dr. Kettner, also diagnosed her with having post-traumatic stress disorder. Both doctors Anderson and Kettner had the advantage of personally interviewing the plaintiff.

[79]Dr. Levin agreed with the diagnosis of adjustment disorder with depressed mood however he did not feel that the plaintiff had post-traumatic stress disorder. Dr. Levin only reviewed the medical documentation and did not interview the plaintiff.

[80]I prefer the evidence of Dr. Anderson and Dr. Kettner over that of Dr. Levin as they were able to personally interview the plaintiff.

[81]The evidence in this case clearly indicates that the plaintiff suffered physical injuries which are long-standing and chronic in nature as well as a serious psychological injury.

[82]The defendants have not discharged their onus that the plaintiff failed to mitigate her losses by failing to take medication. The evidence does not disclose on a balance of probabilities that she was prescribed antidepressant medication. Also, with regard to the plaintiff declining to have injections in her hip, there is no evidence that this delayed her recovery. She also gave evidence that she was afraid of injections, which I accept

[83]The appropriate award for non-pecuniary damages is $110,000.00.

Cyberbullying and Plaintiff Anonymity Discussed by the Supreme Court of Canada

Written by admin on . Posted in Civil Procedure, Sexual Assault Civil Cases, Uncategorized. 59 Comments on Cyberbullying and Plaintiff Anonymity Discussed by the Supreme Court of Canada

Occasionally Canadian Courts make exceptions to the open court principle and allow litigants to sue under a pseudonym and further place publication bans in place.  Reasons for judgement were released today by the Supreme Court of Canada grappling with these issues in the context of a ‘cyberbullying‘ lawsuit involving an infant plaintiff.
In today’s decision (AB v. Bragg Communications Inc.) the Plaintiff, a 15 year old girl, found someone ” had posted a Facebook profile using her picture, a slightly modified version of her name, and other particulars identifying her.  Accompanying the picture was some unflattering commentary about the girl’s appearance along with sexually explicit references.”.  She commenced legal proceedings seeking to uncover the identity of the person who posted this.  She further sought to do so anonymously and asked for the protection of a publication ban.  In a unanimous decision the Supreme Court of Canada held that Plaintiff anonymity was appropriate in these circumstances but that a publication ban beyond information which could identify the Plaintiff was not warranted.  Justice Abella provided the following reasons:
[25]                          In the context of sexual assault, this Court has already recognized that protecting a victim’s privacy encourages reporting: Canadian Newspapers Co. v. Canada (Attorney General), [1988] 2 S.C.R. 122.  It does not take much of an analytical leap to conclude that the likelihood of a child protecting himself or herself from bullying will be greatly enhanced if the protection can be sought anonymously.  As the Kids Help Phone factum constructively notes (at para. 16), protecting children’s anonymity could help ensure that they will seek therapeutic assistance and other remedies, including legal remedies where appropriate.  In particular, “[w]hile media publicity is likely to have a negative effect on all victims, there is evidence to be particularly concerned about child victims. . . . Child victims need to be able to trust that their privacy will be protected as much as possible by those whom they have turned to for help”: Lisa M. Jones, David Finkelhor and Jessica Beckwith, “Protecting victims’ identities in press coverage of child victimization” (2010), 11Journalism 347, at pp. 349-50.
[26]                          Studies have confirmed that allowing the names of child victims and other identifying information to appear in the media can exacerbate trauma, complicate recovery, discourage future disclosures, and inhibit cooperation with authorities.  (See e.g., UNICEF Innocenti Research Centre, Child Safety Online: Global challenges and strategies (2011), at pp. 15–16; and R. v. D.H., 2002 BCPC 464 (Can LII), at para. 8).
[27]                          If we value the right of children to protect themselves from bullying, cyber or otherwise, if common sense and the evidence persuade us that young victims of sexualized bullying are particularly vulnerable to the harms of revictimization upon publication, and if we accept that the right to protection will disappear for most children without the further protection of anonymity, we are compellingly drawn in this case to allowing A.B.’s anonymous legal pursuit of the identity of her cyberbully. ..
[29]                          The acknowledgment of the relative unimportance of the identity of a sexual assault victim is a complete answer to the argument that the non-disclosure of the identity of a young victim of online sexualized bullying is harmful to the exercise of press freedom or the open courts principle.  Canadian Newspapers clearly establishes that the benefits of protecting such victims through anonymity outweigh the risk to the open court principle. 
[30]                          On the other hand, as in Canadian Newspapers, once A.B.’s identity is protected through her right to proceed anonymously, there seems to me to be little justification for a publication ban on the non-identifying content of the fake Facebook profile.  If the non-identifying information is made public, there is no harmful impact since the information cannot be connected to A.B.  The public’s right to open courts and press freedom therefore prevail with respect to the non-identifying Facebook content.
[31]                          I would allow the appeal in part to permit A.B. to proceed anonymously in her application for an order requiring Eastlink to disclose the identity of the relevant IP user(s).   I would, however, not impose a publication ban on that part of the fake Facebook profile that contains no identifying information.

$42,000 non-pecuniary assessment for "somewhat exaggerated" soft tissue injuries

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

Reasons for judgment released last week by the BC Supreme Court, New Westminster Registry, assessing damages for lingering soft tissue injuries caused by a motor vehicle collision
In last week’s case (Fifi v. Robinson) the plaintiff was injured in a 2008 crash.   Fault for the collision was admitted focusing the trial on an assessment of the plaintiff’s damages.
The plaintiff alleged that she suffered from significant soft tissue injuries.   She sought global damages between $271,000 and $396,000.  The court found aspects of the plaintiffs case problematic and further found that she ‘somewhat exaggerated’ her complaints.  Despite this Mr. Justice Verhoeven found that the plaintiff did suffer some injuries which were lingering to the time of trial.  In assessing non-pecuniary damages  $42,000 the court provided the following reasons for judgment:
[116]     I accept that at the time of her testimony at trial, in January 2012, in excess of three years post accident, she was still suffering from soft tissue injuries to her neck, back, shoulders, arms and hands resulting from the accident.  She has headaches but these are infrequent and of relatively short duration.  Her major ongoing complaint is of pain.  She is not at risk of developing degenerative arthritis or disc disease in future arising from the accident injuries. There is no evidence that the accident injuries will result in any long-term consequences to her health.
[117]     In view of my conclusion that her complaints are somewhat exaggerated, it is difficult to assess the true extent and degree of the plaintiff’s ongoing pain and disability resulting from the accident injuries.  What is clear to me is that they are not as significant as the plaintiff has stated.  It is also clear that other than for the first two to three weeks post-accident, her injuries have never been seriously disabling.  I note her testimony that her injuries had improved by the time she returned to work at Levan in January 2009 and had improved further when she worked at 5ive West in the fall of 2010.  I find that her injuries have gradually been improving with time…
[125]     I find that the residual effects of the plaintiff’s injuries will likely continue for one or two years from the time of trial, but will continue to diminish further with the passage of time, and with appropriate treatment such as active rehabilitation and exercise.  Following this period, any residual complaints will not be significant…
131]     Upon consideration of the whole of the evidence, in my view the sum of $42,000 represents a fit and proper amount of compensation for the plaintiff’s non pecuniary loss…

Court Critical of ICBC for Failing to Advise Unrepresented Party of Limitation Period

Written by admin on . Posted in Uncategorized.

When advancing a tort claim with ICBC it is important to remember that they have no duty to advise you of your limitation period.  If the clock runs out before filing your lawsuit there is typically little a court can do other than offer words of criticism at ICBC for engaging in this practice.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In last week’s case (Tolentino v. Gill) the Plaintiff was injured in a 2004 collision. He dealt with ICBC directly with the Court making the following findings about their interactions:
22]        …I find that on July 13, 2005, Mr. Tolentino told Ms. Brunac-White that he had not talked to anyone about his claim (including a lawyer) and Ms. Brunac-White advised Mr. Tolentino that it was not necessary to have a lawyer at that time. Ms. Brunac-White intended to discuss the matter with Mr. Tolentino after she obtained updated medical information. Mr. Tolentino was to contact her when he returned from a trip but he did not do so before the limitation period expired on January 10, 2006. Ms. Brunac-White did not attempt to contact Mr. Tolentino either, and she closed the file on February 2, 2006, after conducting a search for a writ of summons.
The Plaintiff ultimately started a lawsuit and ICBC applied to have it dismissed as being filed beyond the limitation period.  The court sided with ICBC and dismissed the lawsuit but prior to doing so Madam Justice Fisher provided the following criticism:
[23]        It is indeed unfortunate that Ms. Brunac-White made no effort to contact Mr. Tolentino before the limitation period expired. It would have been a simple task that could have served the interests of both parties. However, as the plaintiff concedes, ICBC as the insurer has no duty to advise him about the limitation period. Silence or inaction may be considered a representation only where the representor owes a legal duty to the representee to disclose something or take certain steps: Ryan v Moore, 2005 SCC 38…
[29]        I wish to add, however, that I was disturbed by the adjuster’s approach in this case. She sought to rely on an “agreement” with the plaintiff about the next steps but when he did not contact her after several months, she ought to have considered that there could have been a misunderstanding. While she may not have been successful in making contact with the plaintiff given his history, her failure to make any attempt to contact him before the limitation period expired was in my view unreasonable. She had a telephone number and could have left him a message. Although she did not have a legal duty to do so, given her knowledge of the claim, this would have been a more reasonable and fair approach.
[30]        The plaintiff’s action is dismissed…
 

Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 59 Comments on Court Refuses to Re-open Issue Where ICBC Fails to Pursue "Seatbelt Defence" During Liability Trial

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing whether ICBC could re-open a trial to raise the seat-belt defence where they failed to advance such a claim during a liability only trial.
In yesterday’s case (Matheson v. Fichten) the Plaintiff was injured in a 2009 collision.  The matter proceeded to trial first on the issue of fault.  Prior to trial the Plaintiff admitted that “at the time of the accident she was not wearing the lap and shoulder seatbelt“.  ICBC did not lead this evidence at trial.  Ultimately fault for the crash was split between the motorists involved on a 90/10 basis.   Prior to entering judgement ICBC sought to re-open the liability trial to permit them to lead evidence of contributory negligence with respect to the seatbelt issue.  Madam Justice Smith refused to do so providing the following reasons:
[4]             Although the Reasons for Judgment state (at para. 5) that there is no allegation of contributory negligence against the plaintiff, in fact, the defendant Harmandeep Singh Bahniwal did allege in his pleadings that the plaintiff was contributorily negligent in that she failed to use her seat belt or failed to have her head rest properly adjusted.
[5]             Further, the defendants produced evidence on the application that at the plaintiff’s examination for discovery on November 3, 2011, she admitted that at the time of the accident she was not wearing the lap and shoulder seatbelt.
[6]             Despite the pleadings and that admission, the allegation of contributory negligence was not pursued at the trial.  During the three-day trial, neither counsel led any evidence bearing on possible contributory negligence on the part of the plaintiff, nor did counsel for either side refer to contributory negligence in his submissions.  The plaintiff did not testify and her testimony at the examination for discovery was not tendered.  There was no medical evidence with respect to her injuries or with respect to the consequences of her having failed to utilize the seatbelt…
[9]             In my view, the defendants had their opportunity at the trial to raise the defence of contributory negligence and to lead evidence in that regard.  They have not satisfied me that there would be a miscarriage of justice if the trial is not re-opened.  While the plaintiff has admitted that she was not wearing her seatbelt, there is no material before me to suggest that medical or other evidence regarding her injuries is available that would possibly change the result of the trial.  Finally, it is likely that the trial would have been conducted differently if the contributory negligence had been pursued, and it would be unfair to the plaintiff to require the trial on liability to be re-opened at this stage.