The 1,500 Club
I’m proud to announce that this site has now grown to over 1,500 posts. Thank you folks for your continued readership which makes this effort worthwhile!
$110,000 Non-Pecuniary Assessment for Psychological Injuries Following Fatal Collision
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
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
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
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
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.
Unknown Prognosis a Barrier to Quantum Trials, But Not Liability
Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing the fact that an unknown prognosis is a true barrier to a personal injury quantum claim proceeding to trial.
In this week’s case (Dazham v. Nachar) the Plaintiff sued the Defendant for injuries sustained in a 2009 collision. Fault was disputed. As the matter approached trial the Plaintiff sought an adjournment arguing that the matter was not yet ready as the Plaintiff’s physicians were unable to comment on his prognosis. The Court agreed but instead of adjourning the entire matter severed the issues of quantum and liability and ordered that the trial proceed solely on the issue of fault. In doing so Master Baker provided the following reasons:
[12] Nevertheless, I have concluded that this is not one of those cases where the injuries can be said to have plateaued, that it is now just a matter of waiting. That is not the case to me at all. Both physicians have indicated further surgical intervention. They have also indicated that that is a contingency; in essence a) whether the cortisone injections work; and b) whatever the MRI says.
[13] So by no means are we at a point where the extent of Mr. Dazham’s injuries and their expected recovery can be given with satisfactory accuracy. I just do not think we are there yet.
[14] As I say, the liability is very much in issue, and why it is generally the situation or circumstance that the court prefers not to sever issues, when we have a lay witness, when we have such an active issue. I think it is in everyone’s interest that that matter be resolved first, and then as a consequence, rather than adjourn the matter, that the issues of liability and quantum be severed and that the matter of liability proceed.
[15] With respect, I adopt Mr. Justice Finch’s comments in Radke v. M.S., 2006 BCCA 12 at paragraph 24, in which he comments that:
If the plaintiff’s injuries have not resolved to the point where damages can fairly be tried, the parties may still try the liability issues while the events are fresh in the witnesses’ memories.
[16] I understand Ms. Meade’s concerns about credibility being an important aspect, both as to liability and as to damages, but I can’t see that that is a sufficient concern or basis for not severing. I also think severing is the appropriate approach, rather than adjourning, as I have already said.
[17] As a consequence, there will be an order directing that the issues be severed.
You can click here to read my archived posts addressing adjournment applications and severance applications in the BC Courts.
Litigation Guardians Are Not Immune From "Loser Pays" Costs Consequences
Update September 25, 2013 – The below decision was upheld by the BC Court of Appeal in reasons released today
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I’ve written many times about the BC Supreme Court’s “loser pays” system which generally requires a losing litigant to pay for the winner’s costs and disbursements. If a lawsuit is started on a child’s behalf and on reaching adulthood they take over the claim themselves can the former litigation guardian still be exposed to loser pays costs consequences? The answer is yes as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (McIlvenna v. Viebeg) a lawsuit was commenced on behalf of an infant plaintiff in 2003. By 2009 the Plaintiff was an adult and took over the prosecution of his claim himself by filing an affidavit of attainment of majority. The matter proceeded to trial and the claim was ultimately dismissed. The Defendant was awarded costs. An issue arose as to whether the Plaintiff or the previous litigation guardian were liable to pay these. The Court held that the Litigation Guardian was liable for costs up until the Plaintiff reached the age of majority and the Plaintiff was liable from that point onward. Mr. Justice Sigurdson provided the following reasons:
[17] Although Bird J.A.’s comments on the liability of litigation guardians for costs in Miller were dicta, they were considered dicta. Bird J.A. concluded that an infant ratifying the action after attaining the age of majority does not inherit and replace the litigation guardian’s liability for costs. I have seen nothing in the authorities that lends support to the position that a defendant’s possible entitlement to costs from a litigation guardian disappears when the infant reaches majority. I expect that subsequent to Miller, litigation guardians starting actions (and filing affidavits at the time) understood their potential liability for costs and the fact that it continued at least up to the infant’s majority. Rule 20-2(12) and (13) do not suggest that the filing an affidavit upon attaining the age of majority removes any possible past liability of the litigation guardian for costs.
[18] While it is true that a possible adverse costs order may deter a person from suing as a litigation guardian, there are also policy reasons that support awarding costs in favour of successful defendants. In any event, I think the underlying law has been clear for more the 50 years that a litigation guardian assumes potential liability for costs if he or she starts an action as a litigation guardian and is not successful.
[19] Accordingly, my conclusion is that Shawne McIlvenna, the plaintiff’s former litigation guardian, is responsible for the costs that I have already ordered, up to February 27, 2009, when the plaintiff filed his affidavit of majority. ..
Parties Cannot Rely on Opposing Litigant's Jury Notice Under The New Rules of Court
Reasons for judgement were released this week by the BC Supreme Court, Cranbrook Registry, concluding that under the New Rules a Plaintiff “is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the Defendant“.
In this week’s case (Moll v. Parmar) the Plaintiff was injured in a 2006 collision. The case had a complex pre-trial history that cannot easily be summarized but in short the matter was set for trial with only one live jury notice in place which was filed by the Defendant. As trial neared the Defendant elected not to rely on the Jury Notice. The Plaintiff brought an application allowing him to piggy-back on the Defendant’s Jury Notice. Mr. Justice Abrioux held that this was not allowed and dismissed the application. The court did, however, grant the Plaintiff leave to file a jury notice of their own.
In concluding that one party cannot rely on another’s Jury Notice under the New Rules the Court provided the following reasons:
[1] The plaintiff seeks to have the trial of this action heard by the court with a jury. The application was heard on July 12, 2012. It raises the issue as to whether under the Supreme Court Civil Rules, which came into effect on July 1, 2010, a party which did not file a jury notice may, nonetheless, rely on a jury notice filed by another party and secure a trial by jury by paying the required fees. In light of the pending trial date being August 13, 2012, I am delivering these oral reasons for judgment today. I reserve the right to edit these reasons although that process will not involve a change in the decision or in the reasoning…
[19] The plaintiff’s submission is predicated on the word “and” at the conclusion of Rule 39(26)(a) not being present at the end of Rule 12-6(3)(a)(ii). The plaintiff submits the inclusion of “and” at the end of Rule 39(26)(a) formed the basis of William J.’s conclusion in Folk. It was only the party that issued the jury notice who was entitled to pay the jury fees associated with that notice.
[20] I agree with the plaintiff that the word “and” at the end of Rule 39(26)(a) was an important factor in Folk. I do not agree, however, that its omission in Rule 12-6(3)(a)(ii) changes the state of the law. Rule 12-6(3) states, “a party may require that the trial of an action be heard by the court with a jury by doing the following”. Although “and” is not present, the words “by doing the following” were added in the introductory wording of the present subrule.
[21] In accordance with Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, I read the subrule in its entire context “in its grammatical and ordinary sense harmoniously” with the Supreme Court Civil Rules. In doing so, I am of the view the words “by doing the following” had the effect of replacing the word “and” which appeared in Rule 39(26)(a).
[22] Accordingly, as would have been the case under Rule 39(26), the plaintiff in this case is not entitled to have a jury trial by paying the jury fees associated with the jury notice filed by the defendant.
$60,000 Non-Pecuniary Assessment For Lingering Soft Tissue Injuries and Recovered Head Injury
Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, addressing damages for lingering soft tissue injuries and a recovered mild traumatic brain injury.
In yesterday’s case (Hardychuk v. Johnstone) the Plaintiff was injured in a 2006 collision. Fault was admitted focusing the trial on damages. The Plaintiff alleged that she suffered a permanent brain injury which resulted in significant incapacity seeking damages well over 2 million dollars. While the Court rejected much of this claim Madam Justice Dickson was satisfied that the Plaintiff suffered lingering soft tissue injuries and a recovered traumatic brain injury in the crash. In assessing non-pecuniary damages at $60,000 the Court provided the following reasons:
[162] I have found that Ms. Hardychuk suffered soft tissue injuries to her neck, shoulders and back in the accident. After a two-year process of gradual recovery, these injuries left her with residual symptoms of back discomfort, occasional flaring pain and periodic headaches. Ms. Hardychuk also suffered post-traumatic stress disorder and a mild traumatic brain injury as a result of the accident. The symptoms of her post-traumatic stress disorder are well encapsulated, resolving and non-debilitating. The mild traumatic brain injury caused Ms. Hardychuk to suffer cognitive deficits for several months but those symptoms have now fully resolved.
[163] As a result of her ongoing soft tissue injury symptoms Ms. Hardychuk experiences pain, frustration, and fatigue, but not a mood disorder or cognitive deficits. Her vocational, home and recreational activities have been somewhat modified, but she has not been rendered sedentary or unemployable. As discussed below, her decision to leave her cabinetmaking job in 2010 is not causally related to the accident, nor is her state of depression. The prognosis for further improvement in her ongoing accident-related symptoms is good, but she may never recover fully.
[164] Before the accident, Ms. Hardychuk was an extraordinarily athletic and physically-oriented young woman. Vigorous, enthusiastic, unimpeded physical activity in her work and recreational pursuits was, for her, a major pleasure in life. For this reason the compromise to her physical state and activities caused by her ongoing symptoms, while not highly debilitating, represents an unusually significant loss for which she is entitled to be fully compensated. That being said, her loss is not nearly of the nature or magnitude of those addressed in the cases cited by her counsel. It is, however, somewhat greater than those addressed in the cases cited by counsel for the defence.
[165] All things considered, I conclude that an award of $60,000 in non-pecuniary damages is appropriate in the circumstances of this case.