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Single Vehicle Leaving Roadway With No Reasonable Explanation Sufficient to Prove Negligence

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.

Two cases were recently released by the BC Supreme Court addressing negligence in the face of single vehicle collisions involving vehicles leaving the roadway.
In the first case (McKenzie v. Mills) the Plaintiff was injured when she was the passenger in a vehicle the left the roadway.  The Plaintiff had no recall of how the collision occurred.  The Defendant disputed liability arguing there was no sufficient evidence to prove the collision was caused by negligence.  Madam Justice Dorgan disagreed finding that absent a sensible explanation by the Defendant negligence could be inferred.  In so concluding the Court provided the following reasons:
[30]         Crossing the oncoming traffic lane and even losing control to the point of rolling the vehicle does not necessarily give rise to an inference of negligence; in other words, it is not determinative of the issue of liability.  See Benoit v. Farrell Estate, 2004 BCCA 348 where Smith J.A., writing for the court, says at para. 77:
The question whether negligence should be inferred when a motor vehicle has left its proper lane of travel usually arises in cases, like Fontaine, where the driver of the vehicle is sued by a plaintiff injured in the accident.  In such cases, the plaintiff bears the burden of proof.  The inference that a vehicle does not normally leave its proper lane in the absence of negligence by its operator may afford a prima facie case but, if the defendant driver produces a reasonable explanation that is as consistent with no negligence as with negligence, the inference will be neutralized:  see paras. 23-24.
[31]         However, in this case, neither the defendant nor the third party offered evidence of explanation of the cause or circumstances of the accident.  The defendant left her lane of travel (northbound), crossed over the oncoming lane (southbound), and rolled the truck which was found in the ditch of the southbound lane.  The defendant was intoxicated at the scene; she was given a 24-hour driving prohibition as a result; and was charged with driving while subject to a driving restriction.  While her level of intoxication at the scene is not direct evidence of intoxication while driving, there is no evidence of the defendant, or the plaintiff for that matter, drinking after the accident and before the police arrived.  The only reasonable inference to draw is that the defendant was driving while drunk.
[32]         I have concluded the only reasonable inference to draw from the whole of the evidence is that the plaintiff has established a prima facie case of negligence against the defendant.  The defendant offers no evidence of explanation; therefore, the plaintiff has proved liability.
In the second case (Garneau v. Izatt-Sill) the vehicle left the roadway.  There were no witnesses and two of the vehicles occupants were killed due to the forces of the crash.  The Plaintiff, the sole survivor, had no recall of what occurred.   The Court found that in the circumstances a finding of negligence was warranted with Mr. Justice Weatherill providing the following reasons:
[100]     The evidence leads overwhelmingly to the conclusion that the driver of the vehicle was negligent and that his negligence caused the crash.  The posted speed limit was 110 kph.  The vehicle was travelling in excess of 130 kph at the time of the accident.  As Sgt. Nightingale put it, the crash was caused by speed and the driver’s inattentiveness.  I accept this evidence.  Mr. Bowler agreed that there was no indication of anything mechanically wrong with the vehicle that would have caused or contributed to the crash and that the crash was consistent with driver inattention. 
[101]     In such circumstances, negligence can be inferred: Nason v. Nunes, 2008 BCCA 203 at para. 8.  The defendants led no evidence to the contrary.  

2012 ICBC Doctor and Lawyer Billings Published

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  ICBC has now released their annual Statements and Schedules of Financial Information for 2012.  This is my 7th year highlighting this information.  You can access the following previous years information at the following links:
2011
2010
2009
2008
2007
As previously discussed, this report highlights the billings of Suppliers of Goods and Services which includes doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends you to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
ICBC routinely uses a handful of doctors to perform these independent exams.  A quick glance reveals that some physicians bill well into the six digit range annually for these services.
Another provider of ’services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract(known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.

Court of Appeal Orders Return of Funds Paid After New Trial Ordered

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What happens when a litigant sues and wins, collects part of the judgement, but then a new trial is ordered after appeal?  Reasons for judgement were released by the BC Court of Appeal last week addressing such a situation.
In last week’s case (Camaso Estate v. Saanich (District)) the Plaintiff estate successfully sued for damages where the trial judge found a police officer was grossly negligent for fatally shooting the ‘disturbed’ plaintiff.  Damages of over $300,000 were assessed.  The Defendant appealed and pending appeal obtained an order for a partial stay upon the defendant paying the sum of $119,456.20 to the plaintiff.  The Defendant successfully appealed and obtained an order for a new trial.  The Defendant sought return of the $119,456.  The Plaintiff opposed arguing the Court of Appeal was functus and had no ability to make such an order.  BC’s High Court disagreed and provided the following reasons ordering the return of the funds:
[10]         We do not consider that we are being asked to revisit our order determining the appeal or to adjudicate upon any issue that should have been addressed at the hearing of the appeal.  We are being asked to give a procedural remedy arising out of a process that was initiated and ran its course in this court alone.  The trial court gave a money judgment without terms as to payment.  Terms of payment of the judgment were addressed only in this court in the form of a stay of execution application brought by the appellants under s. 18(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77.  We are not being asked to rehear or to reconsider any aspect of this appeal.  No variation of our order allowing the appeal is sought.  This is merely a housekeeping matter that arises out of the proceedings in this court.  Therefore, the doctrine of functus officio has no application. 
[11]         In a similar case, this court determined that the court has the power to make the kind of order sought by the appellants in the present case: Vaillancourt v. Molnar, 2004 BCCA 384.  In Vaillancourt, the court reduced the amount of a jury award for damages for personal injury with the result that the appellant/defendant, pursuant to a pre-appeal agreement between the parties, had paid the respondent about $72,000 more than she was entitled to receive.  The court relied on s. 9(8) of the Court of Appeal Act: 
[6]        We agree with counsel that this Court has jurisdiction to make an order for repayment of the overpayment. In that regard, we need look no further than s. 9(8) of the Court of Appeal Act, R.S.B.C. c. 77:
(8) For all purposes of and incidental to the hearing and determination of any matter and the amendment, execution and enforcement of any order and for the purpose of every other authority expressly or impliedly given to the Court of Appeal,
(a) the Court of Appeal has the power, authority and jurisdiction vested in the Supreme Court …
[7]        In the result, we conclude that it is appropriate to make the order sought by the appellant, namely, that the respondent shall pay to the appellant the amount of the excess payment, plus interest to the date of repayment.
[12]         See also Hoskin v. Han, 2005 BCCA 483.
[13]         In our opinion, the court retains the power under s. 9(8) to make the order sought, it being a procedural remedy incidental to the appeal and the stay of execution order.
[14]         There will be an order that the respondents forthwith pay to the appellants the sum of $119,456.20. 

Plaintiff Denied Costs for Having No Sufficient Reason to Sue in the Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.

One of the more difficult fact patterns to predict the outcome of is when will a Plaintiff be granted costs when they sue in the BC Supreme Court but are awarded damages below $25,000 (the monetary jurisdiction of the Provincial Court in BC).  You can click here to read archived decisions addressing this.  Adding to these, reasons for judgement were released this week considering such a scenario.
In this week’s case (Akbari v. ICBC) the Plaintiff was injured in a collision caused by an unidentified motorist.  He successfully sued ICBC and was awarded damages of just over $13,000.  Following this the Plaintiff sought costs of $17,000.  Madam Justice Baker denied this finding the Plaintiff had no sufficient reason to sue in Supreme Court. In reaching this conclusion the Court provided the following reasons:
[16]         I am not persuaded that there was sufficient reason to bring this action in Supreme Court.  As the plaintiff submits, the issue of liability was the primary issue at trial.  The Provincial Court is an entirely appropriate forum for determining that issue, the outcome of which largely depended on an assessment of the credibility of the witnesses.
[17]         Ms. Berry of ICBC had no personal knowledge of the circumstances of the accident.  I can surmise that questions put to her on discovery may have related to contact by ICBC representatives with one of the plaintiff’s witnesses, Mr. Nahun Chinchilla, whose testimony I rejected at trial as incredible and unreliable.  Mr. Chinchilla voluntarily contacted both the plaintiff and plaintiff’s counsel and so far as I am aware, volunteered to be interviewed by plaintiff’s counsel prior to trial, so it was not necessary to utilize the Supreme Court Rules to compel his cooperation.
[18]         I am not persuaded that any documents and witness statements provided by the defendant to the plaintiff during the course of pre-trial preparation would not have been supplied by the defendant whether the action had been brought in Supreme Court or in Provincial Court.
[19]         I am not persuaded that there was any reasonable prospect that the plaintiff’s total damages would exceed $25,000.  The special damages and past loss of income were known.  The only head of damages involving uncertainty was non-pecuniary damages. The only medical evidence presented at trial was a report from Mr. Akbari’s family doctor, dated June 2, 2011.  In my view, it should have been obvious to the plaintiff and his counsel, after considering that report, that an award in the range of $25,000 was highly unlikely.
[20]         The report and the opinions expressed in it were sufficiently non-controversial that Dr. Rai was not required to attend for cross-examination.  In Dr. Rai’s opinion, Mr. Akbari suffered soft tissue injuries – described by Dr. Rai as “tendonious strain” affecting Mr. Akbari’s left calf, knee and thigh – from which he had recovered in 8 to 10 weeks.  Mr. Akbari was off work for two weeks, but it was during the Christmas holidays and he had planned to take some vacation during that period in any event.  The injuries caused little disruption to Mr. Akbari, only temporarily interfering with his participation in pick-up soccer games, and his weight-lifting routine at the gym.
[21]         In the plaintiff’s written submissions regarding costs, it was suggested that the concluding paragraph of my trial Reasons, in which I stated that I was not aware of any reason why the plaintiff should not have his costs on Scale B, was a determination of the issue.  That is not correct.  Unless a defendant invokes Rule 14-1, a plaintiff is normally entitled to costs.  Once the Rule is invoked, then the court must consider whether there was sufficient reason to bring the proceeding in the Supreme Court.
The plaintiff shall have disbursements only. 

Discovery Continuation Distinct from a Further Examination

Written by admin on . Posted in BCSC Civil Rule 7. 93 Comments on Discovery Continuation Distinct from a Further Examination

As previously discussed, the law sets a heavy burden when a party seeks a second examination for discovery in a lawsuit in the BC Supreme Court.  There is a distinction, however, between a second discovery and a continuation of an incomplete one.  This distinction was discussed in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Li v. Oneil) the Plaintiff was examined for discovery at which various requests for further information were made.  When the Defendant sought to schedule a continuation of the discovery the Plaintiff opposed arguing the heavy burden for a further discovery was not met.  Master Muir granted the application noting the distinction between concluding an incomplete discovery based on outstanding requests and a genuine further examination.  The Court provided the following reasons:
[11]         The application before me, despite being framed as an application for a further discovery, was in reality an application that the examination of the plaintiff continue, both in accordance with R. 7-2(22) and generally, based on production of new material such as the list of special damages, medical records and employment records. In support, he relies on the decisions in Cowan v. Davies, 2008 BCSC 1239, and Dhami v. Bath, 2012 BCSC 2077…
[15]         I am of the view that the examination for discovery was adjourned as contemplated by these rules. Thus, the defendant is entitled to continue its examination for discovery regarding questions left on the record and I am of the view that logically extends to questions based on documents requested at the discovery and subsequently produced.
[16]         As the examination for discovery was not concluded, the heavy onus required to justify a further discovery referred to in Sutherland v. Lucas is not engaged. Given the extensive document production since the examination for discovery was conducted, I am also of the view that the defendant is entitled to continue its examination for discovery based on the new material, whether or not it was produced in accordance with a request left on the record.
[17]         If this was an application for a second examination for discovery I would come to a similar conclusion.
[18]         On a review of the listing of documents produced by the plaintiff since her examination for discovery as set out in the defendant’s notice of application, it is clear that many are documents that could prove or disprove a material fact and that they were in existence prior to her examination for discovery and as such required to be produced under rules 7-1(1) and 7-1(9).
[19]         The defendant submits that is sufficient to constitute a failure to make full and frank disclosure as contemplated in Sutherland v. Lucas and is such as to warrant a second discovery.
[20]         I agree. In my view it does not behoove a party to fail to make complete document disclosure prior to an examination for discovery and then to take the position that the examination cannot be continued when proper disclosure is made.
[21]         Thus, in the circumstances of this case I am satisfied that the defendant did not conclude its discovery and thus the heavy onus referred to in Sutherland v. Lucas does not apply. The defendant is entitled to continue its examination for discovery on the new matters, but is not entitled to examine on matters covered on the first day of examination for discovery.

MRI Disbursement Allowed Where Expense Incurred for Dual Purposes

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Reasons for judgment were released last week by the BC Supreme Court, Vancouver Registry, allowing the costs associated with a private MRI to be recovered as a disbursement in a personal injury claim.
In last week’s case (Wu v. Ly) the plaintiff commissioned a private MRI following a motor vehicle collision.  This was done following a recommendation of her treating physician.  In allowing this disbursement to be recovered District Registrar Cameron provided the following brief reasons:
[7]             In Colasimone v. Ng and Mo, 2007 BCSC 1179, Madam Justice Gropper was dealing with an appeal of a decision of District Registrar Blok (as he then was) that allowed the cost of MRI scans as a taxable disbursement.  Her Ladyship notes:
In his reasons for judgment Registrar Blok describes MRI scans as presenting a “special problem in considering party and party bill of costs.”  He notes that MRI scans can be used for either or both treatment and litigation and sometimes the line is blurred. The Registrar concludes:
I am satisfied that a sufficient litigation purpose was shown on the evidence before me such that the disbursement was reasonably incurred, necessary and proper in a litigation purpose.  Specifically the purpose here was for Mr. Maryn to make a decision about the impending trial.
Registrar Blok has considered the “special problem” that MRI scans present in his decision of Ward v. W.S. Lessing Ltd., 2007 BCSC 877.  He comments that the cost of MRI scans have been allowed and disallowed as a disbursement.  There are cases which support either position, but as the Registrar notes, each turns on its facts.  The Registrar continues:
If an MRI was performed for the purposes of treatment, then it may be claimed as an item of special damages.  If it is used as an aid in the litigation process, then it is properly claimed as a disbursement on a party and party bill of costs.  Those are the typical questions that are dealt with when MRIs are at issue.
[T]here must be some judgment applied, perhaps with medical input, in considering the necessity for the procedure in a litigation context, given the injuries involved, the likely damages, what the MRI is expected to achieve from a litigation standpoint and so on.
[8]             In paragraph 22 of her decision, Her Ladyship concludes by saying, having reviewed all of the evidence:
Thus the scans were for two purposes:  to determine the extent of the plaintiff’s injuries and for treatment purposes.
[9]             In the result Madam Justice Gropper upheld the Registrar’s decision, finding he did not clearly err in finding that the disbursement related to MRI scans was reasonably, necessarily and properly incurred for the purposes of the litigation.
[10]         In this case there is evidence before me that the impetus for the MRI was from Dr. le Nobel, who was a treating physician for the Plaintiff and who was continuing to suffer ongoing pain and discomfort some four years following the motor vehicle accident.  Because of Dr. le Nobel’s concern about her continuing symptoms and to better assess them, he recommended that an MRI examination be done.
[11]         Mr. Wiseman was involved as counsel in the process and pointed out that the cost for the MRI examination was one that was paid directly by him.  He was concerned to have the best evidence available to serve as a foundation to most reliably assess the Plaintiff’s claim for damages. I am satisfied that this is one of those cases where the MRI was obtained for two purposes being  for diagnosis and also to assist the Plaintiff and her counsel in better evaluate and present her claim for damages.
[12]         Mr. Chalcraft did not take any issue with the cost of the MRI other than to object to the claim for interest.  Mr. Wiseman abandoned the claim for interest, and as a result the MRI disbursement is allowed as claimed in the sum of $1,595.

"Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness" Leads To Further Discovery

Written by admin on . Posted in BCSC Civil Rule 7. 45 Comments on "Overly-Frequent Interventions, Inappropriate Objections, and an Under-Prepared Witness" Leads To Further Discovery

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering a further examination for discovery of a party due to “overly-frequent interventions, inappropriate objections, and an under-prepared witness“.
In this week’s case (CP v. RBC Life Insurance Company) the Plaintiff was suing for disability insurance coverage she had in place with the Defendant.  In the course of the lawsuit the plaintiff examined a representative of the Defendant and the discovery was “at times disruptive, or event fractious“.  The Plaintiff adjourned the discovery before using her full 7 hours.  The Plaintiff sought an order allowing her to reschedule the examination and seeking to exceed the 7 hour cap.  In finding this was appropriate Master Baker provided the following sensible comments addressing the conduct of discoveries under the new rules of court:
[14]         Ms. Hayman adjourned in part due, she says, to the frequent interruptions and interventions by Ms. Carmichael. She argues that many of the interruptions were in and of themselves improper and that, for example, questions that were objected to should be answered by court direction. But perhaps more concerning to Ms. Hayman is that, she says, it was practically impossible to establish “a flow” to the examination which is, after all, in the nature of a cross-examination.
[15]         I have reviewed the 170 pages of the transcript of the two examination intervals. There are comments, objections, interventions, questions, or the like by Ms. Carmichael on 116 of the pages. It must be said that many are typical of an examination and benign; advice to Ms. Edizel, for example, to speak up, or confirmation to Ms. Hayman that the defense does have the proffered document. But the sheer number of recorded comments and interventions lend support to Ms. Hayman’s submission…
[18]         I worry that there is a trend to more oppositional examinations for discovery and that more and more will, inevitably, result in applications such as this. While the court is always available to apply the Rules of Court and decide on procedural issues, the process for examinations for discovery never intended this level of supervision. I agree with N. Smith J. that the court should generally discourage a question by question approach that, essentially, subsidizes counsel’s fundamental duty to conduct an appropriate discovery, on the one hand, or to permit one (including its broad and wide-ranging nature, often), on the other.
[19]         Rule 7-2(1)(a) inevitably increases the responsibilities in that regard. With a seven-hour limitation, examining counsel is obviously required to be efficient, focussed, and effective in conducting his or her examination. Opposing counsel, on the other hand, is obliged to restrict his or her objections and not consume that valuable time with unnecessary objections or interventions. Quite the contrary: if one thinks strategically, why not allow one’s opponent to use the examining time with irrelevant or non-productive questions? Tedious as they may seem, they would offer an excellent response to any application for increased examination time.
[20]         But that choice would be entirely left to the examinee’s counsel. In the main, it is for him or her to avoid intruding on the examiner’s time unless clearly justified.
[21]         There is a parallel obligation on the actual examinee; with the restriction on examination time comes a heightened responsibility to inform oneself in advance of the examination, so that the time can be used fruitfully and the discovery process serve its purpose. In this case Ms. Edizel had a particularly clear obligation in that regard. She was not the case manager or supervisor during the operative times of C.P.’s claim management; both of those individuals, as I’ve said, have left RBC. It was therefore incumbent on Ms. Edizel to redouble her efforts to examine the file and its history and to inform herself as much as possible. Both Ms. Wadhwani and Ms. Rhodes were apparently unwilling to talk to anyone about C.P.’s claim. The best source of information (other than the file entries themselves, one supposes) were therefore denied Ms. Edizel. I can understand, then, her inability to answer some (perhaps many) questions, but on the whole I am not satisfied that she met her obligation to inform herself as much as reasonably possible in advance of her examination. As a consequence, Rule 7-2(22) applies:
In order to comply with subrule (18) or (19), a person being examined for discovery may be required to inform himself or herself and the examination may be adjourned for that purpose.
[22]         The combination, then, of overly-frequent interventions, inappropriate objections, and an under-prepared witness requires that Ms. Edizel be further examined. I will not restrict that examination to outstanding requests. Moreover, her attendance for further examination in British Columbia will be at the expense of the defendant (subject, obviously, to any future rulings on costs). Ms. Hayman will be permitted a further four hours for examination as requested.

Riding In a Towed Vehicle Found Negligent by BC Supreme Court

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In a case involving a comedy of mishaps leading up to a motor vehicle incident, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing whether it is negligent to ride in a vehicle that is being towed.
In last week’s case (Tabor v. Bridge) the Plaintiffs were involved in a series of mishaps which ultimately led to them having their vehicle towed.  Despite the prohibition of riding in a vehicle that is being towed the Defendant tow truck driver allowed the Plaintiff’s to ride in their own vehicle.   In the course of the trip the tow truck’s dolly system broke causing the towed vehicle to sway back and forth causing injuries to the Plaintiff’s.  The Defendant was found negligent for failing to properly assemble the dolly system.  The Court went on to find that the Plaintiffs were also contributorily negligent for riding in a vehicle that was being towed. In finding them 25% at fault for this decision Mr. Justice Cohen provided the following reasons:
[34]         Section 7.07(6) of the Motor Vehicle Act Regulations, B.C. Reg. 26/58 provides that no person shall tow a motor vehicle if there is a person in or on the towed motor vehicle.  There is no doubt that provision was breached in this case.  However, the law provides that mere breach of a statute, standing alone, does not constitute negligence per se: see Van Tent v. Abbotsford (City) 2013 BCCA 236…
[46]         In the case at bar, I find that the plaintiffs appreciated the risk associated with them riding together with their children as passengers in the Ford Explorer while it was being towed.  I also find that they accepted the risk not only because of the assurance they received from the defendant driver as to their safety, but also because they considered this option in all of the circumstances to be more convenient than waiting at the BMW site for a cab to take them home, especially because once they were back at the terminal they could ask the superintendent to arrange a cab to drive them to Surrey at no cost to them.
[47]         In my opinion, regardless of what the plaintiffs were told by the defendant driver about their safety, or for that matter the fact that the police observed the situation and did nothing to stop it, they nevertheless had an obligation to assess the risk and act reasonably.  The fact that the defendant driver told them it was a safe option did not mean that the risk associated with the situation they accepted was unforeseeable.  Thus, I am satisfied that to some degree the plaintiffs were to blame, but I find that the defendant driver was at fault to a much greater degree.
[48]         I find that the defendant driver knew full well that it was against the law to permit persons to ride in a vehicle being towed.  His responsibility in this regard was not removed by the fact that he believed the police would not penalize him in the circumstances.  In addition, he was completely in control of the situation in terms of allowing the plaintiffs and their children to ride in the Ford Explorer while it was being towed.  He could have easily refused them this option or have offered to take two of them at a time back to the terminal in his tow truck.
[49]         When I balance the relative degrees of fault, I find that liability should be apportioned 25% to the plaintiffs and 75% to the defendant driver.

Private MRI Disbursement Disallowed Due To No Evidence of Urgency

Written by admin on . Posted in Uncategorized.

Reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, disallowing recovery of the costs of a private MRI in a personal injury lawsuit.
In this week’s case (Repmicki v. 616696 BC Ltd) the plaintiff obtained a private MRI in the course of his lawsuit.  At settlement the parties could not agree whether this disbursement was reasonable and brought the matter before the Court.  District Registrar Cameron held that while having an MRI was reasonable, there was no evidence justifying the expense to be privately incurred.  In dismissing the claimed disbursement the Court provided the following reasons:
[5]             While the medical evidence that I was referred to satisfies me that obtaining an MRI examination in this case was a reasonable step to take in the Plaintiff’s interest and to assist with a determination of whether or not there was a causal link to her neck, upper back, and lower back injuries and the motor vehicle accident, I am not satisfied that it was reasonable to incur the additional expense to have the MRI examination done in the private healthcare system.  I may have been persuaded it was reasonable to do so if, in fact, there was evidence that there was going to be an ongoing and significant delay in having the MRI examination done in the public healthcare system, but that evidence was not before me.
[6]             For these reasons, the disbursement will be disallowed.

Physician's Evidence Rejeced for Lack of "An Open Mind" Regarding Collision Related Injury

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

Adding to this site’s archived judicial comments about expert witness evidence that is judicially rejected, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4/5 disc injury caused by a motor vehicle collision.
In this week’s case (Sekihara v. Gill) the Plaintiff was injured in a 2007 collision.  Although liability was denied the Defendant was found 100% responsible for the crash.   In the course of the trial the Defendant relied on an orthopedic surgeon who blamed some of the Plaintiff’s persisting symptoms not on the collision but instead on “deconditioning, her recent pregnancy and weight gain” and pre-existing conditions.
The Court rejected this evidence finding the plaintiff, who was a former professional athlete, suffered an L4/5 disc injury in the crash which was responsible for her persisting symptoms and assessed non-pecuniary damages at $130,000.  In rejecting the defence medical evidence the Court provided the following criticism:
[160]     On behalf of the plaintiff, it is submitted that Dr. Grypma’s opinion should be given no weight for the following reasons:
1.     He took what can only be described as a cursory history from Ms. Sekihara;
2.     he made a number of editorial comments in the section titled “medical records review” which were not identified as being his own comments;
3.     in that same section he left out salient facts which tended to support Ms. Sekihara’s complaints;
4.     also in that section, if he was unable to read handwriting, he simply left those sections out of his summary without stating that he had done so; and
5.     he was evasive at times in his oral testimony.
[161]     I agree with the plaintiff’s submissions regarding Dr. Grypma.  In his evidence, Dr. Grypma does not appear to have demonstrated an open mind in his examination of and conclusions regarding Ms. Sekihara or to have taken into account the complete medical history.
[162]     Most importantly, Dr. Grypma’s opinion that the enduring complaints of back pain are related to any of the four unrelated conditions is inconsistent with the evidence of Ms. Sekihara and of the objective evidence of the tear of the annulus fibrosis. 
[163]     Ms. Sekihara, as a snowboarder and professional athlete, many times per day for years, would load her spine with at least 3 times her body weight every time she made a jump with no back pain.  I do not accept Dr. Grypma’s evidence that it is coincidental that she suffered back pain immediately following the motor vehicle accident due to degeneration or a previously existing pars defect. 
[164]      It was Ms. Sekihara’s inability to pursue her regular activities due to her back pain which caused the deconditioning, not vice versa.  Ms. Sekihara had ongoing low back pain long before she became pregnant.  The pars defect was congenital and the degenerative changes longstanding. 
[165]     The characterisation of the low back injury is the major issue.  I prefer the evidence of Dr. Hershler who diagnosed it as a disc injury at L4/5.  His conclusions are based on his interpretation of the imaging, his examinations, and on Ms. Sekihara’s reporting of her symptoms, both pre and post-accident.