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Implied Undertaking of Confidentiality Set Aside For Health Care Costs Recovery Action

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

Further to my previous posts addressing the implied undertaking of confidentiality, reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing whether the undertaking for documents produced in a tort action should be set aside for a subsequent prosecution under the Health Care Costs Recovery Act.
In this week’s case (British Columbia v. Tekavec) the Defendant was found liable for damages after an individual fell from a balcony in a building owned by him.   He was ordered to pay over $322,000 in damages.  The BC Government then sued the Defendant seeking recovery of their Health Care Costs.
In the course of the lawsuit the Government requested production of certain documents which were created in the initial litigation such as examination for discovery transcripts.  The Defendant refused to provide these arguing they were subject to the implied undertaking of confidentiality.  The Court held that in these circumstances it was appropriate to order production.  In doing so Mr. Justice Williams provided the following reasons:
11]         It is a fundamental rule of the litigation model that information, both documentary and oral, obtained by a party through the discovery process is subject to an implied undertaking. It cannot be used by any other party (i.e. other than the originator) except for the purpose of the litigation in which it was produced. The undertaking is essentially perpetual: it survives the resolution of the litigation in which the discovery was made. The restriction can be modified only by court order or with the consent of the party with whom the material originates.
[12]         The principle is authoritatively articulated in Juman v. Doucette, 2008 SCC 8, and the underlying rationale is discussed there at some length. For the purpose of the present discussion, there is no point to delving into that.
[13]         Where a court order is sought to relieve against the implied undertaking, the applicant will have the onus of satisfying the court on a balance of probabilities that the interest to be advanced through the sought-after disclosure is greater than the values that underpin the rationale for the implied undertaking. Central to the analysis will be a careful consideration of any prejudice that will be caused to the party who initially provided the material at issue. Of course, it goes without saying that the material must be relevant to the issues in the action in which the disclosure is sought…
29]         In the matter at hand, it is my conclusion that the circumstances warrant an order overriding the protection of the implied undertaking. The basis for so deciding is that, while the applicant HMTQ was not a party to the original action, the principal issue in the present action is compellingly similar to the issue there: was Mr. Tekavec responsible for the injuries that were sustained by Mr. Jack? I note as well the following: Mr. Jack has apparently indicated that he has no objection to the materials being disclosed to the applicant. There would be no prejudice to Mr. Jack if the materials were to be disclosed. Finally, the same questions and topics that were canvassed with Mr. Tekavec in the examination for discovery at issue could be quite properly raised in his examination for discovery in the present action. In effect, disclosure of the materials represents a proper means of proceeding more efficiently.

Defence Medical Doctor Given "Very Little Weight" For Failing to Examine Plaintiff

Written by admin on . Posted in independent medical exams, Uncategorized.

As previously discussed, the failure of a doctor to examine a Plaintiff is not, in and of itself, a barrier to the physician from providing opinion evidence to the BC Supreme Court, however, often little weight is attached to a doctor’s opinion in such circumstances. This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Rizzotti v. Doe) the Plaintiff suffered psychological injuries in a serious collision in which the offending motorist died. At trial the Plaintiff tendered expert evidence addressing the extent of her injuries. The Defendant tendered a report from a psychiatrist, Dr. Levin, who disagreed with the Plaintiff’s experts with respect to the extent of her accident realted psychological injuries.
Dr. Levin did not examine the Plaintiff prior to authoring his report and in the course of trial acknowledged that “that he could not do a proper assessment without interviewing the plaintiff“. The court accordingly provided little wieght on Dr. Levin’s opinion and provided the following reasons:
[27] Dr. Levin is a psychiatrist tendered by the defendants as rebuttal evidence to the opinion of Dr. Anderson. The plaintiff objected to the admissibility of Dr. Levin’s report during this trial. I declared a voir dire to allow the plaintiff to cross-examine Dr. Levin and make argument as to the admissibility of the report. I ultimately found that the report was admissible, however I initially told counsel that I would be putting very little weight on the report as Dr. Levin did not interview the plaintiff…

34] For the above noted reasons I ruled Dr. Levin’s report admissible and I ruled that his evidence on the voir dire would form evidence on the trial proper.

[35] I have already explained that I am putting little weight on Dr. Levin’s report because he did not interview the plaintiff. Dr. Levin himself testified that he could not do a proper assessment without interviewing the plaintiff.

Lessons From the Toothbrush Case: Setting Aside An Adverse Party Notice

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Last year I discussed the practice of calling a Defendant during the course of a Plaintiff’s case in chief using the adverse party provisions of the BC Supreme Court Rules.  Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, in the highly publicized ‘broken toothbrush’ trial, addressing these and the circumstances where the Court can set aside an Adverse Party Notice.
In the recent case (Alnoor v. Colgate-Palmolive Canada Inc.) the Plaintiff alleged she was injured while brushing her teeth with a toothbrush manufactured by the Defendant.  She alleged that the toothbrush was negligently designed and sued for “substantial damages“.
In the course of the lawsuit the Plaintiff attempted to examine the President of Colgate-Palmolive Canada for discovery.   These attempts were dismissed with the Court finding that the President was not an appropriate witness to be examined in the circumstances of the case.
As trial neared the Plaintiff served an Adverse Party Notice on the Defendant requiring the president to testify at trial.   Madam Justice Wedge exercised her discretion under Rule 12-5(23) to set aside this Notice finding again that this was an inappropriate witness to be compelled at trial.  In doing so the Court provided the following reasons:

29] The recent decision of Mr. Justice Butler in Dawson v. Tolko Industries Ltd., 2010 BCSC 1384, examines the meaning and effect of these provisions in detail. He observed at para. 18 that the Court is granted only limited jurisdiction to set aside an adverse witness notice. It is only where the evidence of the person is “unnecessary” that the Court can set aside the notice.

[30] Further, as the Court noted at para. 19, it is only in a clear case that a judge should exercise his or her discretion to set aside a subpoena on the ground that the evidence is unnecessary. That is because the Court should be very cautious about second guessing the litigants concerning the benefits they may derive from calling a particular witness.

[31] I agree with those comments. However, the Court is also granted discretion under subrule (24) which provides that where an application is made to strike an adverse witness notice, the Court may make any order it considers will further the objects of the rules.

[32] As I noted earlier, Ms. Alnoor first attempted over two years ago to issue an appointment to examine Mr. Jeffery for discovery. However, the Court ruled that Mr. Jeffery was not the appropriate representative on the basis that his position in the company is strictly managerial. He has no knowledge pertaining to any of the issues arising in the litigation. Ms. Alnoor has been clear that she wants to call Mr. Jeffery, not because he has any knowledge of the issues in the lawsuit, but because he is the person within the corporation who is ultimately responsible for the corporation’s actions, its consumer safety policies, and its recall policies. She points to the various mission statements on the defendant’s website, published over Mr. Jeffery’s signature.

[33] Ms. Alnoor wishes to question Mr. Jeffery about his statement that the defendant is committed to consumer safety, about his responsibility for product safety, and its recall policies. She wants to ask Mr. Jeffery why the company did not recall the toothbrush model in question before she purchased one. Because Mr. Jeffery is the president, submits the plaintiff, he must be the one ultimately responsible to recall products and warn consumers, and she wants to question him about those responsibilities.

[34] The difficulty with Ms. Alnoor’s argument is that the evidence she seeks to elicit from Mr. Jeffery is not relevant to the proof of her claim. She has brought a negligence action against the defendant. She must establish that the defendant was negligent in the manufacture, design, and/or testing of the toothbrush such that it was defective, and that the defect caused the harm the plaintiff alleges she suffered when using it. Any acknowledgment by Mr. Jeffery that he is the person ultimately responsible for the defendant’s actions, including its recall policies, will not advance the plaintiff’s claim in any way.

[35] The identity of the person ultimately responsible and any acknowledgment by that person that he is ultimately responsible by virtue of his management position within the company is simply irrelevant to the negligence factors the plaintiff must prove in order to succeed in her claim.

[36] In the event that Ms. Alnoor does establish her claim, the corporation, not Mr. Jeffery or any other senior management person, will be held liable for the damages flowing from the corporation’s negligence. That is so whether or not Mr. Jeffery acknowledges the various responsibilities he has as the corporation president. The company will be liable whether or not Mr. Jeffery had any idea that his company was manufacturing a defective product.

[37] In short, the evidence Ms. Alnoor intends to elicit from Mr. Jeffery is not relevant to the issues in the lawsuit. Irrelevant evidence is not admissible. It is unnecessary evidence within the meaning of the Rule.

$60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Spine Injury Cases, Uncategorized. 63 Comments on $60,000 Non-Pecuniary Assessment for "Not Serious" Lingering Soft Tissue Injuries

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for longstanding, but not disabling, soft tissue injuries.
In this week’s case (Samson v. Aubin) the Plaintiff was injured in a 2007 collision.  The Defendant admitted liability for the T-bone intersection crash.  The Plaintiff suffered soft tissue injuries to his neck, back, knee and ankle which were characterised as long-standing but “not serious” by his physician.   After an initial period of disability the injuries improved but plateaued without full resolution.  They were expected to flare with physical activities such as prolonged standing and heavier lifting.  In assessing non-pecuniary damages at $60,000 Mr. Justice Gaul provided the following reasons:
[44] According to Mr. Samson he continues to suffer pain and discomfort in his right knee, right ankle and especially his lower back on account of the Accident. As a result, he has been forced to reduce his efforts at work and has had to retain and pay others to complete the renovation work on his home. He has also had to reduce his recreational activities, including those he engages in with his son…

[47] While I found Mr. Samson to be a poor historian of events, I do not find that he has inflated the magnitude of his injuries in an effort to obtain a greater award of non-pecuniary damages. The evidence of Mr. Samson’s father, Gerald, coupled with that of Mr. Gray, Mr. Manson and the medical evidence, satisfies me that the injuries Mr. Samson suffered as a result of the Accident and the consequential pain, discomfort and loss of enjoyment of life from those injuries, are more severe than those found in the cases cited by the defence.

[48] I find Mr. Samson will likely continue to have some pain and discomfort in his lower back, right knee and right ankle for the foreseeable future. However, I also find that Mr. Samson has not actively pursued his rehabilitation to the degree expected of him. Since the fall of 2007, Mr. Samson has not participated in any exercise program designed to address his injuries, notwithstanding the advice and recommendations he received from the various healthcare professionals who had treated him following his accident.

[49] In my view, having considered all of the evidence, a fair and reasonable award of general damages for Mr. Samson’s pain and suffering and loss of enjoyment of life is $60,000.

More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Written by admin on . Posted in Civil Procedure, ICBC Fibromyalgia Cases, Uncategorized. 55 Comments on More Judicial Critisism of Delayed Plaintiff Testimony in Injury Litigation

Earlier this year I highlighted judicial comments criticising the practice of not having a Plaintiff testify as the first witness in their personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, echoing these comments.
In this week’s case (Charles v. Dudley) the Plaintiff was injured in a 2008 collision.  She advanced a case alleging chronic pain and fibromyalgia.  The Court found that these claims were not proven on a balance of probabilities and ultimately awarded damages for soft tissue injuries which the Court found “resolved within a few months of the accident“.  In criticizing the Plaintiff’s delayed testimony Mr. Justice McEwan provided the following reasons:

[2] The trial proceeded in a fashion I would have described as unorthodox until recently, with the medical evidence called before the plaintiff testified. Counsel advised that they understand this to be the preferred way to run a personal injury case. I do not know where they get this idea. If persuasion of the trier of fact is the objective, the practice of leading medical opinion unattached to any factual foundation is the most awkward way to go about it. I have observed elsewhere that doctors do not subject their patients to a forensic examination. They generally assume that what the patient tells them is true and attempt to treat their symptoms. Their observations are of assistance to the trier of fact to the degree to which they reasonably conform to the facts that have been established after the plaintiff’s assertions have been tested. It is very difficult to assimilate medical evidence provisionally, that is, with no means of sorting what matters from what does not. A trier of fact obliged to hear a trial this way must go back over such evidence to put it in context. This Court is not alone in making this point. In Yeung v. Dowbiggin, 2012 BCSC 206, Humphries J. said:

[27]     Since the plaintiff was one of the last witnesses called and was in the courtroom very rarely prior to her testimony, it was difficult to assess the evidence about the effects of the accidents as I listened to the various witnesses. I had no idea who the plaintiff was, had no sense of her, and had heard no evidence about the accidents as I listened to all these witnesses. I do not know if this was a tactical decision or whether it was necessitated by schedules, but it meant the evidence I heard was all without context.

[3] In any event, owing to gaps in the scheduling of the opinion witnesses, I persuaded counsel to call the plaintiff after the first medical witness had testified to fill out the court day. The case then proceeded with interruptions of the plaintiff’s evidence to accommodate the scheduled witnesses. While occasional scheduling issues may dictate such a course, plaintiffs in personal injury cases should generally be called first, if the point is to put across a coherent case.

$40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Written by admin on . Posted in ICBC Hip Injury Cases, Uncategorized. 48 Comments on $40,000 Non-Pecuniary Assessment for Aggravation of Tronchanteric Bursitis

Update August 23, 2013 – An Appeal from the below decision was successful with the BC Court of Appeal ordering a new trial.  Reasons from the BC Court of Appeal can be found here.
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for aggravation of pain due to pre-existing hip bursitis.
In this week’s case (McArthur v. Hudson) the Plaintiff was injured in a 2008 T-Bone collision caused when the Defendant failed to stop at a stop sign.  Fault was admitted.   The Plaintiff had significant pre-existing difficulties resulting in a total hip replacement.  Following this the Plaintiff developed trochanteric bursitis.

He continued to have problems due to this and other complications of his pre-existing condition.
The collision caused an aggravation of the Plaintiff’s tronchanteric bursitis along with some soft tissue injuries.  The court found that this aggravation ran its course by mid 2011.  The Court further found that the balance of the Plaintiff’s lingering limitations were due to his pre-existing condition and not compensable.  In assessing non-pecuniary damages for the aggravation at $40,000 Madam Justice Kloegman provided the following reasons:

[74]The plaintiff must be compensated for losses due to an aggravation of bursitis in the lateral aspect of the trochanter which was substantially resolved by March 2011. The plaintiff must be compensated for losses incurred by him for a soft tissue injury to his shoulder that substantially resolved after about one month, and a soft tissue neck injury that substantially resolved by May 2011. Finally, the plaintiff is entitled to compensation for headaches experienced until May 2011 and an aggravation of his depression due to the setback (perceived or otherwise) in his rehabilitation until November 2008.

[75]The plaintiff is not entitled to compensation from the defendant resulting from post-surgical complications in his hip, such as sublaxating fascia lata, tight iliotibial band or weak abductor muscles. The plaintiff is not entitled to compensation from the defendant for his lower back issues which resulted from a previous injury and arthritis in the spine. The plaintiff is not entitled to compensation from the defendant for any neck injuries or headaches after May 2011…

[82]Nonetheless, I am satisfied that the plaintiff endured a significant degree of pain, both physically and emotionally, from his Accident related injuries, and he is entitled to reasonable compensation for that. Given the plaintiff’s age, the nature and duration of his injuries, and the impact on his enjoyment of life, I am of the view that his damages should be set at $40,000 (Laroye v. Chung, 2007 BCSC 1478; Guilbault v. Purser, 2009 BCSC 188; and Carter v. Zhan, 2012 BCSC 595).

$20,000 Non-Pecuniary Assessment For 3 Year Soft Tissue Injuries With Good Prognosis

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for fairly modest injuries caused by a motor vehicle incident.
In the recent case (Ward v. Zhu) the Plaintiff was a passenger on a bus that stopped suddenly throwing her to the ground.  This occurred as the driver was avoiding a collision with another motorist.  Fault was admitted by the other motorist.  The Plaintiff suffered soft tissue injuries and although these remained symptomatic at the time of trial (over three years following the incident) they did not significantly impair the Plaintiff.  In assessing non-pecuniary damages at $20,000 Mr. Justice Goepel provided the following reasons:

[30] In this case, there is limited evidence that supports Ms. Ward’s claim for loss of enjoyment of life and loss of amenities. Ms. Ward missed no time from work as a result of her injuries. Within two months of her injuries, she was trying out for a soccer team. The only amenities referenced in her evidence concerned reductions in running and walking and difficulty in 2011 sitting through a concert. On the evidence that has been led at this trial, I cannot find that Ms. Ward’s enjoyment of life has been significantly compromised by this accident.

[31] There is also limited evidence in relation to pain and suffering. Ms. Ward abandoned physical therapy and chiropractic treatments shortly after the accident. She went long periods of time without seeking any medical advice concerning her injuries. She did not say anything to her family doctor concerning these injuries until January 2011. The defendant submits that the lack of complaints to medical practitioners supports his submission that Ms. Ward substantially recovered within weeks of the accident.

[32] I do not accept that conclusion. In 2009, Ms. Ward had other difficulties in her life which explain why she did not actively seek treatment for these injuries. I accept her evidence that she did not aggressively seek medical treatment because she mistakenly believed the injuries would resolve without medical assistance.

[33] I find that Ms. Ward did suffer an injury in the fall on the bus. I accept that those injuries have impacted her for more than three years. Her decision not to actively treat her injuries immediately following the accident has undoubtedly prolonged her recovery. When Ms. Ward finally started an active regime of chiropractic and massage treatments her condition improved. Dr. Dyment testified that Ms. Ward’s injuries are now slowly resolving. The evidence does not allow me to conclude that her injuries are permanent.

[34] While Ms. Ward’s recovery has been prolonged, the impact on her life is considerably less than the plaintiffs in Deiter and Parker, although somewhat greater than the plaintiffs in the cases cited on behalf of the defendant. While the cases provide a general range of appropriate damages, all cases ultimately must be decided on their own facts.

[35] I award $20,000 in non-pecuniary damages. This award includes an allowance for the difficulty that Ms. Ward has had or will continue to have in performing her usual household tasks with less efficiency and comfort than she did before the accident: Helgason v. Bosa, 2010 BCSC 1756 at para. 160.

Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

Written by admin on . Posted in Uncategorized. 42 Comments on Indivisible Injury Analysis Applicable For Both Causation and Quantum of Damages

The BC Court of Appeal released reasons for judgement this week further addressing the law of indivisible injuries.
In this week’s case (Moore v. Kyba) the Plaintiff was member of the Canadian Navy and suffered an interscapular injury in a 2007 motor vehicle collision.   A year before this he injured his right shoulder in a shipboard fall and lastly suffered a bicep tear during a fall in 2008.
He sued for damages claiming the collision injury permanently disabled him from his naval career.  ICBC argued that no injury was caused and that this man’s disability was related to the falls.  The Jury accepted the Plaintiff’s claims and awarded $823,962 in damages for loss of earning capacity.  ICBC appealed arguing the trial judge gave the Jury improper instructions addressing indivisible injuries.  The Appeal was dismissed with the Court providing the following summary of the law:
[32] Much judicial ink has been spilled concerning the characterization of multiple injuries as divisible or indivisible, and the impact of that characterization on the determination of causation and assessment of damages in a negligence case.

[33] The legal principles underlying these concepts are clear, but explaining them to a jury “is no easy task” (see Laidlaw v. Couturier, 2010 BCCA 59 at para. 40).  Nor is their application in varying particular factual contexts always straightforward.

[34] The relevant principles were clearly set out in Athey v. Leonati, [1996] 3 S.C.R. 458.  Their elaboration in Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R. 3, and by this Court in T.W.N.A. v. Canada (Ministry of Indian Affairs), 2003 BCCA 670 at paras. 22-37, B.P.B. v. M.M.B., 2009 BCCA 365, Bradley v. Groves, 2010 BCCA 361 and Laidlaw are also helpful.

[35] The basic principles at play in this analysis are that a “defendant is not liable for injuries which were not caused by his or her negligence” (Athey at para. 24), and “the defendant need not put the plaintiff in a position better than his or her original position” (Athey at para. 35).  These two principles, which deal with the concepts of causation and assessment of damages, were distinguished in Blackwater (at para. 78):

It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey.

[36] Thus, whether a defendant is liable to a plaintiff for an injury is a matter of causation; the amount of compensation the defendant must pay is a matter of assessment of damages.

[37] The concepts of divisible and indivisible injury are relevant at both stages of the analysis.  At the stage of determining causation, the characterization of the plaintiff’s injury or injuries as divisible or indivisible is relevant in determining what the defendant is liable for.  As explained in Athey (at paras. 24-25):

The respondents submitted that apportionment is permitted where the injuries caused by two defendants are divisible (for example, one injuring the plaintiff’s foot and the other the plaintiff’s arm): Fleming, supra, at p. 201. Separation of distinct and divisible injuries is not truly apportionment; it is simply making each defendant liable only for the injury he or she has caused, according to the usual rule. The respondents are correct that separation is also permitted where some of the injuries have tortious causes and some of the injuries have non-tortious causes: Fleming, supra, at p. 202.  Again, such cases merely recognize that the defendant is not liable for injuries which were not caused by his or her negligence.

In the present case, there is a single indivisible injury, the disc herniation, so division is neither possible nor appropriate. The disc herniation and its consequences are one injury, and any defendant found to have negligently caused or contributed to the injury will be fully liable for it.

[Emphasis added.]

[38] In this case, in determining causation, the jury had to determine whether the appellant caused injury to the respondent, and if so, whether the rotator cuff injury, the interscapular pain, and the bicep tear were divisible injuries or an indivisible injury.  If they were divisible, the appellant could only be found to be liable for the interscapular pain caused by the motor vehicle accident.  If they were indivisible, the appellant would be liable for that indivisible injury. ..

[41] At the stage of assessment of damages, the question is what compensation the plaintiff is entitled to receive from the defendant.

[42] If the injury is divisible, then the plaintiff is entitled to be compensated for the injury caused by the defendant.  In this case, if the interscapular pain was a divisible injury, then the respondent was entitled to compensation for his loss flowing from that injury.

[43] If the injury is indivisible, then the plaintiff is entitled to be compensated for the loss flowing from the indivisible injury.  However, if the plaintiff had a pre-existing condition and there was a measurable risk that that condition would have resulted in a loss anyway, then that pre-existing risk of loss is taken into account in assessing the damages flowing from the defendant’s negligence.  This principle is called the “crumbling skull” rule.  As explained in Athey (at para. 35):  “This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.”

[44] For a recent example of a reduction in damages to reflect a pre-existing condition, see Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2012 BCCA 331.

At the conclusion of the reasons the Court of Appeal attached the trial judge’s jury charge which is worth reviewing.  For access to my archived posts addressing indivisible injuries you can click here.

$75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

Written by admin on . Posted in ICBC Whiplash Cases, Uncategorized. 64 Comments on $75,000 Non-Pecuniary Assessment for Triggering of Pain in Pre-Existing Degeneration

As previously discussed, a common pattern following a motor vehicle collision is the onset of pain in a pre-existing but otherwise asymptomatic degenerative condition.  Reasons for judgement were released recently by the BC Supreme Court, Kelowna Registry, addressing such an injury.
In the recent case (Culos v. Chretien) the Plaintiff was involved in a 2006 pedestrian collision.  The Defendant motorist was found fully at fault.  The collision caused an aggravation of pre-existing low back pain and further caused chronic neck pain problems.  The latter problems were found to be due to pre-existing degeneration which became symptomatic as a result of the impact.  In assessing non-pecuniary damages at $75,000 Mr. Justice Rogers provided the following reasons:

[51] I find that the plaintiff accurately described his injuries and the symptoms he experienced after the accident. The fact that his left hip was sore when he went to see his physician several days after the accident and that his left thigh just above the knee was not bruised tell me that the defendant’s car hit him on his left hip, not his left thigh. I find that the impact gave the plaintiff a severe body-wide jolt. The impact caused the pre-existing but asymptomatic degenerative disease in his neck to become symptomatic. Absent the accident, the plaintiff may have lived out his entire life without any neck symptoms. The accident caused his neck to be painful, and the pain has persisted to this day. I accept Dr. Vallentyne’s opinion that the plaintiff’s neck symptoms are permanent.

[52] I find that the plaintiff’s memory of his pre-accident back function is faulty. The symptoms of pain that he felt in his lower back in the approximately one year before the accident must have been significant. I find that is so because the plaintiff is clearly not one to go running for medical treatment for minor or transitory complaints – the fact that he held off for five days after the accident before seeking medical help supports that proposition. For that reason, I accept Dr. Vallentyne’s opinion that even if the accident had not happened the plaintiff’s periodically symptomatic low back pain and his pre-existing degenerative disease in that region would have, as Dr. Vallentyne said, required him to “minimize heavy lifting/carrying as well as repetitive bending/twisting”. That said, I find that the accident accelerated and worsened the plaintiff’s low back symptoms; “accelerated” in the sense of causing the pain to be constant rather than periodic, and “worsened” in the sense that the low back pain prevented the plaintiff from participating in his usual activities to a much greater degree than before.

[53] I cannot accept Dr. Grypma’s opinion that the plaintiff’s present symptoms are not related to or caused by the accident. I find that the flaw in Dr. Grypma’s opinion is his dismissal without discussion of the indisputable temporal connection between the onset of the plaintiff’s neck and back symptoms immediately after the accident and his continuing symptoms throughout of pain in exactly those same regions. The link is, of course, the fact that those symptoms have persisted from then until now. The physicians agree that the accident did not accelerate the degeneration of the plaintiff’s neck and back – it follows that the plaintiff’s pains are not a result of increased degeneration. If the symptoms occurred after the accident, it is reasonable to conclude that they were caused by the accident, and the doctors agree on that as well. What Dr. Grypma does not explain is how it is that the plaintiff’s symptoms transitioned from pains caused by the accident to pains caused by his degenerative disease, and how it is that even without the accident, the plaintiff would nevertheless now be suffering from those symptoms. I find that there is a causal link between the accident, the onset of the plaintiff’s neck pain and the worsening of his low back symptoms, and the persistence of those symptoms through to the present day.

[54] Currently the plaintiff’s neck and back symptoms are present on a daily basis. They flare up when the plaintiff does anything strenuous. The symptoms aggravate, frustrate and tire the plaintiff out. They have reduced his enjoyment of recreational activities. The symptoms are a permanent feature of the plaintiff’s life. After discounting the plaintiff’s claim to account for the fact that absent the accident his lower back would have troubled the plaintiff periodically, I find that the proper award for non-pecuniary damages in this case is $75,000.

Welcome CFAX Listeners – Dog Bite Injury Law in BC

Written by admin on . Posted in BC Injury Claims Media Archives, Uncategorized. 51 Comments on Welcome CFAX Listeners – Dog Bite Injury Law in BC


Earlier today I had the pleasure of being interviewed by CFAX Radio with respect to lawsuits for compensation as a result of Dog Bite injuries in British Columbia.
For those of you looking for more on this area of law you can click here to read a 2004 decision which provides the following useful overview of the legal principles of scienter and negligence which were discussed in today’s interview:

[] The common law doctrine of scienter differs from negligence in that if the conditions for scienter are found, the liability is absolute and does not depend upon proof of negligence.  The requirements for establishing scienter were described by the British Columbia Court of Appeal in Janota-Bzowska v. Lewis, [1997] B.C.J. No. 2053.  In that case the Court observed at para. 9 that the owner of a dog can be found liable for an attack in two ways:

First, the owner may be held liable under the doctrine of scienter and second, the owner may be held liable for negligence.  It is important to keep the two separate as they often become intertwined.  They are, however, not the same.

The Court went on at para. 20 to describe the doctrine of scienter in this way:

The law with respect to the doctrine of scienter is relatively clear.  The owner of a dog which bites another will not be liable simply for being the owner.  Liability will only attach under the doctrine if the three conditions set forth in the Neville decision have been satisfied.  In other words, the plaintiff (not the defendant) must establish:

i)   that the defendant was the owner of the dog;

ii)  that the dog had manifested a propensity to cause the type of harm occasioned; and

iii) that the owner knew of that propensity.

Some provinces now have legislation which modifies the common law of scienter but, since the repeal of the Animals Act in 1981, British Columbia does not and the common law applies untrammelled by statutory enactment.

[] At para. 23 of the judgment, the Court of Appeal described the requirements for negligence in the context of a dog attack in this way:

To succeed in an action based on negligence against Holtzman, the plaintiff must prove, on a balance of probabilities that:

(a)  Holtzman knew, or ought to have known, that Boomer was likely to create a risk of injury to third persons, including the plaintiff; and

(b)  Holtzman failed to take reasonable care to prevent such injury.  …

[] It can be seen that there are two important differences between liability based on scienter and liability based on negligence.  If the requirements of scienter are established, liability is absolute, and the plaintiff is not required to show breach of a standard of care.  On the other hand, to establish scienter, the plaintiff must show both that the dog manifested a propensity to cause the type of harm which occurred and also that the owner knew of that propensity.  It thus appears that for scienter, the mental element is based on a subjective test:  the plaintiff must establish that the defendant actually knew of the dog’s propensity to cause the relevant type of harm.  This is in contrast to liability based on negligence, where an objective test applies.  That is, for negligence it is sufficient if the defendant knew or ought to have known that the dog was likely to create a risk of injury to third persons, and failed to take reasonable care to prevent the injuries.