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$45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC LVI (Low Velocity Impact) Cases, ICBC Spine Injury Cases, Uncategorized. 52 Comments on $45,000 Non-Pecuniary Assessment for C-7 Disc Herniation With Radiculopathy

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for injuries sustained in a collision.
In this week’s case (Coutakis v. Lean) the Plaintiff was involved in a rear-end collision in 2008.   The crash was of ‘considerable force‘.  While there was competing evidence as to the exact speed of impact the Court made the following common sense observation “The precise speed does not matter.  What does matter is that there is no evidence that the force of the collision, given the defendant’s estimated speed, would have been insufficient to cause the injuries complained of“.
The collision caused low back soft tissue injuries in addition to a C-7 disc herniation with nerve root impingement causing pain and weakness in the Plaintiff’s arm.

The Plaintiff was a retired maintenance engineer but made spare money in his retirement painting houses.  The injuries disabled him from this work.  In assessing non-pecuniary damages at $45,000 Mr. Justice Saunders provided the following reasons:

[47]In summary, Mr. Coutakis was an active and relatively healthy person prior to the motor vehicle accident, with no significant low back pain other than the occasional flare-ups which we are all subject to, and with every reason to expect a healthy and active retirement.  His plan to keep working at painting was reasonable, and there is a significant probability to be attached to his thought of continuing to work, health permitting, approximately to age 75.  His current complaints disable him from pursuing his employment as a painter.  I find that his current complaints were materially contributed to by the accident.  There is no basis, on the evidence, for concluding that any pre-existing degenerative changes in his cervical or lumbar spines – the cervical herniation, and the lumbar disc bulging – would have become symptomatic but for the accident, and certainly not to the present level of dysfunction and disability.

[48]There is some reason to hope for some modest resolution of Mr. Coutakis’ complaints with continuing conservative treatment.  However, the only expert witness to express any significant degree of optimism is his family physician, Dr. Cox.  Dr. Cox is not a specialist and I am not inclined to give his optimism a great deal of weight.  He did not have the benefit of Dr. Rothwell’s report, when he examined Mr. Coutakis in September 2010.

[49]I regard the possibility of Mr. Coutakis making any really significant recovery to the level of having a pain-free life, as small.  Even if he were to recover to the level where he might be physically able to resume work, the question at that point would be whether he would be inclined to do so, given his age; with all that he has been through, at that point it would be entirely reasonable for Mr. Coutakis to retire fully and enjoy what is left of his healthy retirement years…

[52]I assess non-pecuniary damages at $45,000.

Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian

Written by admin on . Posted in BCSC Civil Rule 3, Uncategorized. 51 Comments on Third Party Pleadings Permitted Against Plaintiff's Litigation Guardian


When an infant sues for damages in BC they must do so through a litigation guardian.  Typically a parent acts in this role.  If an allegation arises that the litigation guardian’s negligence contributed to the child’s injuries can Third Party proceedings be brought against the litigation guardian?  The answer is yes as was demonstrated in reasons for judgement released by the BC Supreme Court, New Westminster Registry, earlier this month.
In the recent case (Alamdar-Saadati v. Lee) the Plaintiff was involved in a pedestrian/motor vehicle collision in 2009.  He was 6 years old at the time.   He was travelling alone on a transit bus.   After leaving the bus he “attempted to cross the street in front of the bus and was struck by a motor vehicle“.  The Plaintiff, through his mom acting as litigation guardian, sued the driver of the vehicle.
The driver brought an application to bring bring Third Party proceedings against the Plaintiff’s parents arguing they were negligent in allowing the Plaintiff to ride the bus alone.  The Plaintiff objected arguing the application would require the appointment of a new litigation guardian.  Master Keighley found that this was not a barrier to the claim.  In doing so the Court provided the following reasons:

[11] Ultimately, I have reached the conclusion that Ms. Alamdar’s status as litigation guardian does not impact the outcome of this case. She is, however, as a proposed Third Party, entitled to object to the issuance of the notice.

[12] The authorities indicate that a Third Party Notice should not be set aside on a motion under Rule 3-5(8) unless the applicant is able to establish beyond doubt that the pleadings disclose no cause of action. This test is identical to that applied on an application under Rule 9-5(1)(a) and, as a result, it has been held that a Third Party Notice should only be set aside if there is no serious question or issue to be determined, the question or issue raised by the Third Party Notice is not substantially the same as a question or issue in the original action or the question or issue should not properly be determined in the original action: Northmark Mechanical Systems Inc. v. King (Estate), [2009] B.C.J. No. 1812, 2009 BCSC 1237.

[13] The Courts should only exercise its discretion in striking out a Third Party Notice where the question of whether the notice is founded is perfectly clear. If the issue is in doubt the Third Party proceedings should be allowed to proceed to trial for final resolution: Wade v. Marsolais, [1949] B.C.J. No. 14.

[14] The facts pleaded in the Third Party Notice do not have to be supported by evidence and the Court, in considering an application to strike a Third Party Notice, will proceed on the assumption that all the facts pleaded in the Third Party Notice are true: McNaughton v. Baker, [1988] B.C.J. No. 515, 25 B.C.L.R. (2d) 17 (C.A.)…

[19] I am well aware that granting the order sought will disqualify the mother from continuing to act as her son’s litigation guardian. In all fairness, this is a matter which she ought to have considered at the outset. If not she, then surely her counsel should have considered that there was a possibility that a Third Party claim might be advanced against her by virtue of the circumstances of this accident.

[20] The infant plaintiff will not lose his claim but an alternate litigation guardian will have to be found.

[21] The father, I should have mentioned earlier, did not oppose the application to add him as a Third Party.

[22] In the result, an order will go granting the defendant leave to file a Third Party Notice naming Zoleikha Alamdar and Mohsen Saadati as third parties in the form attached as Schedule “A” to the application with the addition of these parties as third parties in the style of cause thereof.

Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 54 Comments on Plaintiff Entitled to Reasonable Accomodation When Scheduling Defence Medical Exams

While the BC Supreme Court Rules give defendants in personal injury lawsuits the power to, in appropriate circumstances, force a plaintiff to attend an ‘independent’ medical exam, a plaintiff is entitled to reasonable accommodation with respect to the scheduling of these.  Reasons for judgement were recently released by the BC Supreme Court, New Westminster Registry, demonstrating this point.
In the recent case (Welder v. Johnston) the plaintiff sustained injuries in a motor vehicle collision.  In the course of the lawsuit the Defendant sought to have the plaintiff examined by a vocational specialist to address the wage loss aspects of the plaintiff’s claim. The plaintiff agreed to be assessed by the Defendant’s expert but the date selected conflicted with a family reunion the plaintiff planned on attending.  The defendant brought an application to force the date but this was dismissed with the court finding a plaintiff is entitled to reasonable accommodation.  In dismissing the application the Court provided the following comments to defence counsel:

I’m not prepared to order the plaintiff to attend on a date when a family celebration and family reunion has been scheduled since January. I don’t think that being a plaintiff in an action you give up all rights to manage your own schedule, and I think it’s unfortunate that there was an error in your office and the information about his unavailability didn’t come to your attention sooner, but the reality is that based on the affidavit from Mr. Welder, he has a commitment that he’s made since January to be out and unavailable during the period in which this has been scheduled, and I am not prepared to make an order for him to attend in the middle of that period of the family reunion.
The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.

$40,000 Non-Pecuniary Assessment for L5-S1 Disc Herniation

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

Reasons for judgement were released last month by the BC Supreme Court, New Westminster Registry, assessing damages for injuries, including a symptomatic L5/S1 disc herniation sustained in a motor vehicle collision.

In the recent case (Pataria v. Bertrand) the Plaintiff was involved in a collision when he was 12.  Fault was admitted by the offending motorist.  Although the Court heard competing evidence about the cause of a low back disc injury Mr. Justice Truscott ultimately found this was caused by the trauma in the collision.  In assessing non-pecuniary damages at $40,000 the Court provided the following reasons:

[171] I accept that the plaintiff sustained soft tissue injuries to his neck and back area, with accompanying headaches, in the motor vehicle accident. I also accept that initially he had symptoms of post-traumatic stress, difficulty falling asleep and hypervigilance, although those problems quickly resolved.

[172] I conclude however that physically the plaintiff is not as injured as counsel makes out. He is able to swim regularly and work out with weights in the gym.

[173] After the accident he was able to return to his sports of soccer, basketball and volleyball, albeit not at the same level of performance.

[174] At his examination for discovery on July 22, 2010 he said he was only feeling back symptoms once or twice a week.

[175] It is also a fact that initially he did not accept the recommendations of Dr. Low that he work harder at recovery although he has improved his effort as time has gone on.

[176] I accept the opinions of Dr. Purtzki that the plaintiff has evidence of allodynia and hyperalgesia and seems to experience non-painful stimuli as painful and mildly painful stimuli as more painful, as a generalization to the area of pain. This is commonly seen with ongoing chronic pain complaints. At the same time she says he may experience gradual improvement of pain in the next few years.

[177] I also accept her opinion that it is more likely than not that the motor vehicle accident is the cause of the disc protrusion which is most symptomatic at L5/S1. Her analysis of the medical literature indicates that in a young man such as the plaintiff disc herniation is much less likely to occur without trauma and the plaintiff’s low back complaints here arose following the motor vehicle accident…

[191] I consider an appropriate figure for general damages for this plaintiff, in the absence of any evidence from a spine surgeon and any prognosis for the psychological problems, to be $40,000.

Supreme Court of Canada Clarifies Law of Causation in Injury Claims

Written by admin on . Posted in Uncategorized. 123 Comments on Supreme Court of Canada Clarifies Law of Causation in Injury Claims


In 2010 the BC Court of Appeal released reasons for judgement seeking to clarify the law of causation in negligence lawsuits.  The Supreme Court of Canada weighed in on this topic in reasons for judgement released today.
In today’s case (Clements (Litigation Guardian of) v. Clements) the Defendant was “driving his motorcycle in wet weather, with his wife riding behind on the passenger seat.  The bike was about 100 pounds overloaded.  Unbeknownst to (the driver), a nail had punctured the rear tire.  Though in a 100 km/h zone, (the driver) accelerated to at least 120 km/h in order to pass a car; the nail fell out, the rear tire deflated, and the bike began to wobble.  (the driver) was unable to bring the bike under control and it crashed“.  The crash caused a severe brain injury to the passenger.
The BC Court of Appeal dismissed the claim finding that the Plaintiff could not prove the Driver’s speed and overloading of the motorcycle caused the crash.  The Supreme Court of Canada, in a 7:2 split, found that errors were made at both the trial and appellate level and ordered a new trial.  In doing so the majority provided the following reasons on the “but for” test of causation in negligence claims:

[6] On its own, proof by an injured plaintiff that a defendant was negligent does not make that defendant liable for the loss.  The plaintiff must also establish that the defendant’s negligence (breach of the standard of care) caused the injury.  That link is causation.

[7] Recovery in negligence presupposes a relationship between the plaintiff and defendant based on the existence of a duty of care — a defendant who is at fault and a plaintiff who has been injured by that fault.  If the defendant breaches this duty and thereby causes injury to the plaintiff, the law “corrects” the deficiency in the relationship by requiring the defendant to compensate the plaintiff for the injury suffered.  This basis for recovery, sometimes referred to as “corrective justice”, assigns liability when the plaintiff and defendant are linked in a correlative relationship of doer and sufferer of the same harm:  E. J. Weinrib, The Idea of Private Law (1995), at p. 156.

[8] The test for showing causation is the “but for” test.   The plaintiff must show on a balance of probabilities that “but for” the defendant’s negligent act, the injury would not have occurred. Inherent in the phrase “but for” is the requirement that the defendant’s negligence was necessary to bring about the injury ? in other words that the injury would not have occurred without the defendant’s negligence.  This is a factual inquiry.  If the plaintiff does not establish this on a balance of probabilities, having regard to all the evidence, her action against the defendant fails.

[9] The “but for” causation test must be applied in a robust common sense fashion. There is no need for scientific evidence of the precise contribution the defendant’s negligence made to the injury.  SeeWilsher v. Essex Area Health Authority, [1988] A.C. 1074, at p. 1090, per Lord Bridge; Snell v. Farrell, [1990] 2 S.C.R. 311.

[10] A common sense inference of “but for” causation from proof of negligence usually flows without difficulty. Evidence connecting the breach of duty to the injury suffered may permit the judge, depending on the circumstances, to infer that the defendant’s negligence probably caused the loss.  See Snell and Athey v. Leonati, [1996] 3 S.C.R. 458.  See also the discussion on this issue by the Australian courts: Betts v. Whittingslowe, [1945] HCA 31, 71 C.L.R. 637, at p. 649; Bennett v. Minister of Community Welfare, [1992] HCA 27, 176 C.L.R. 408, at pp. 415-16; Flounders v. Millar, [2007] NSWCA 238, 49 M.V.R. 53; Roads and Traffic Authority v. Royal, [2008] HCA 19, 245 A.L.R. 653, at paras. 137-44.

The Court also went on to address the “exceptional” cases where the “material contribution to risk ” doctrine can be used finding its use is appropriate only where:

(a) the plaintiff has established that her loss would not have occurred “but for” the negligence of two or more tortfeasors, each possibly in fact responsible for the loss; and

(b) the plaintiff, through no fault of her own, is unable to show that any one of the possible tortfeasors in fact was the necessary or “but for” cause of her injury, because each can point to one another as the possible “but for” cause of the injury, defeating a finding of causation on a balance of probabilities against anyone.

Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

Written by admin on . Posted in Jury Trials, Uncategorized. 42 Comments on Is Comparing an Expert Witness to a "Wizard Buffoon" Fair Game in an Injury Trial?

Reasons for judgement were recently shared with me addressing the scope of permissible closing arguments criticizing an opposing expert witness in an injury claim before a jury.  In short the Court held that comparing an opposing expert to Johnny Carson’s Carnac The Magnificent crossed the line.
In the recent case (Walker v. ICBC) the Plaintiff sued for damages for serious injuries sustained in a motor vehicle incident.  In defending the case ICBC called a professional engineer who provided evidence which contradicted the Plaintiff’s expert.  The expert was vigorously cross examined.  In closing arguments to the Jury the expert was compared to Carnac the Magnificent.  In finding this comment beyond the permissible scope Mr. Justice Voith provided the following reasons:
[24]  The Submission addressed Dr. Toor and his evidence at paras. 78-87 and elsewhere.  The attack made on Dr. Toor had at least two components or aspects, each of which was repeated in different ways and each of which was inappropriate.  The first was that Dr. Toor, a professional person, was knowingly and intentionally made an object of derision and ridicule.  Counsel for the Plaintiff accepted this and did not resile from it.  If Dr. Toor’s evidence was ridiculous, he argued, Dr. Toor deserved to be ridiculed…
[26]  The second statement, “although Johnny Carson is dead, the Amazing Karnak lives on”, is inappropriate.  The defendant in argument described the Karnac figure as a “wizard buffoon”.  Counsel for the Plaintiff agreed.  He went on to accept that the Karnac figure was a “ridiculous, turbanned and bejewelled caricature”.
[27]  Earlier during the trial, counsel for the plaintiff had held up a sealed envelope in his hand and began to ask Dr. Toor what was in it.  I prevented counsel from proceeding.  I did not appreciate at the time, however, that this bit of theatre was intended to presage things to come and to lay the groundwork for counsel’s subsequent submissions.  I accept that counsel can be vigorous in its attack on the evidence and qualificaitons of an expert.  That attack may well use some “drama and pathos”:  Cahoon at para. 18.  I do not consider or accept that it should extend to ridicule based on counsel’s belief that a witness’s evidence is ridiculous.  It should not depict or describe a professional person, qualified to give expert evidence, as a fool or buffoon based on counsel’s perception of that witness.  In this case, the indirect assertion that Dr. Toor was a buffoon was reinforced by the sarcastic tone, again often independently acceptable, which counsel for the plaintiff used in these submissions.
A mistrial was eventually declared.  The reasons for judgement are not publicly available but, as always, I’m happy to provide a copy to anyone who contacts me and requests one.
I am advised this matter is under appeal and will post further on this topic after the BC Court of Appeal weighs in on this issue.  Whatever the final judicial outcome addressing the scope of fair criticism, its a safe bet BC won’t mirror New Mexico’s satirical 1995 proposal requiring expert witnesses to dress like wizards while testifying.

Defendant's Insured Status Shields Plaintiff From Hefty Costs Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 7, BCSC Civil Rule 9, Uncategorized.


As previously discussed, when a Plaintiff fails to beat a Defendant’s formal settlement offer at trial they can be exposed to significant costs consequences.  One factor that Courts can consider when using their discretion is the financial status of the parties including whether the Defendant is insured.  Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, using this factor in shielding a Plaintiff from potentially hefty costs consequences.
In this week’s case (Cunningham v. Bloomfield) the Plaintiff was injured in a collision.  She sued for damages and the claim proceeded to jury trial.  Prior to trial the Defendant provided a formal settlement offer of $12,500.  The jury awarded $5,000 in total damages triggering a Defence application for payment of post offer costs.  Mr. Justice Crawford rejected the application finding stripping the Plaintiff of all her costs was a more appropriate result.  In addressing the financial position of the parties the Court provided the following reasons:

[15] The award of the jury was low. But as noted in Cairns at para. 50, the unpredictability of a jury is a relevant consideration.

[16] It is said that the plaintiff is not lacking in income and no evidence as to her assets have been put forward to properly consider her position. But as discussed in several of the cases, the defendant through their insurer is able to cover their costs. The plaintiff on the other hand has a dependent husband and a reduced income, though that by choice.

[17] The other factor I consider appropriate is of course my assessment of the plaintiff’s case upon the issuing of the writ and I have found counsel’s assessment was over-optimistic and therefore the plaintiff is already deprived of costs.

[18] In the circumstances I will allow the plaintiff her disbursements throughout, but I will make no order as to costs payable to either side.

Province Not Liable For Prisoner Injured by Axe

Written by admin on . Posted in Uncategorized.


Reasons for judgement were release this week by the BC Supreme Court, Nanaimo Registry, dismissing a lawsuit against the Province of BC for injuries sustained by an inmate struck with an axe, allegedly by another inmate.
In this week’s case (Foulds v. British Columbia) the Plaintiff was incarcerated in the Nanaimo Regional Correctional Centre.  In the course of his incarceration he was placed on a “farm gang” along with other inmates.  The Plaintiff and another inmate were tasked with clearing brush and stacking wood.  They were provided with axes.   The Plaintiff and the other inmate decided to chop down a tree (a job that he was not tasked with).  During this time the Plaintiff “was struck on his left knee with an axe“.  There was some inconsistency about whether the Plaintiff struck himself or was struck by the other inmate.
Mr. Justice Affleck held that even if the other inmate struck the Plaintiff the Province should not be liable.  In dismissing the claim the Court provided the following reasons:

[32] The standard of care imposed on the Province in managing the NRCC farm inmates cannot be one of continuous supervision of every inmate at all times. I have no basis to conclude that the system of supervision in place at the farm on May 14, 1997 was deficient and failed to meet the appropriate standard of care. Nor can I conclude that Mr. Matthews’ decision to permit the plaintiff and Cameron the use of an axe to clear brush and to split wood fell below the standard of care. Both the plaintiff and Cameron had been assigned various tasks by Mr. Gooding and Mr. Matthews had no reason to change those assignments. I do not fault Mr. Matthews for permitting the plaintiff and Cameron to take an axe nor do I fault Mr. Matthews for not escorting the plaintiff and Cameron to the worksite in the wooded area.

[33] In my opinion, the absence of direct supervision of the plaintiff and Cameron was not the cause of the injury. The injury was caused or at least occasioned by the decision of the plaintiff and Cameron to use the axe to chop a tree, a task to which they had not been assigned.

[34] There appears to have been several reasons for the NRCC to have a farm. One important reason was for those inmates who were permitted to work on the farm to enjoy a level of independence not permitted to other inmates. That independence would be meaningless if there was continuous supervision. Nevertheless if there was not constant supervision the risk of injury associated with the use of tools of various kinds was increased. That risk had to be tolerated if independence to any degree was to be achieved. The standard of care imposed on the Province must be viewed in that light. I cannot find the Province was negligent.

[35] The action is dismissed…

BC Civil Proceedings Must Be Conducted in English Only

Written by admin on . Posted in Uncategorized.

The BC Court of Appeal delivered reasons for judgement today (Conseil Scolaire Francophone de la Colombie-Britannique v. British Columbia) addressing whether “a Supreme Court judge presiding in British Columbia over a civil proceeding has the discretion to permit documents in the French language to be filed as exhibits to an affidavit without accompanying English translations“.
The Court of Appeal held that this is not permitted and that all evidence must be in English or translated into English.   After canvassing a fairly lengthy statutory history the Court concluded as follows:
[64] Having found that the requirement for civil proceedings in British Columbia to be conducted in English is prescribed by statute, I conclude that there is no discretion for a judge of the Supreme Court of British Columbia presiding over civil proceedings to admit documentary evidence in any other language for the truth of its contents without an accompanying English translation

Document Disclosure Photocopy Expenses Ordered at $0.30 Per Page

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 51 Comments on Document Disclosure Photocopy Expenses Ordered at $0.30 Per Page


Rules 7-1(16) and (17) deal with producing relevant documents to opposing litigants and costs associated with doing so.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with the rate of reasonable photocopy charges.
In last week’s case (Perone v. Baron) the Plaintiff was involved in a motor vehicle collision.  In the course of his lawsuit ICBC requested copies of relevant documents agreeing to pay $.30 per page for photocopy expenses.  The Plaintiff agreed to produce the documents but insisted that $.35 should be paid per page.  The difference was ultimately resolved via Court Application with Master McDiarmid providing the following reasons:

33] I accept what Esson J.A. wrote, namely that photocopying charges under Rule 7(1)(16) are more closely akin to what would be allowed in a solicitor-client costs review. I also note, though, that at the time Giulianiwas decided, just over 14 years ago, the registrar’s rate was only 60% of what it is now.

[34] After reviewing the facts before me and the law presented to me, I consider that the rate of 30¢ per page is appropriate. I order the production of the documents by the respondent on the terms sought. Paragraphs 1 and 2 of the application are granted.