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Clinical Records Undermine Personal Injury Claim at Trial

Written by admin on . Posted in Civil Procedure. 55 Comments on Clinical Records Undermine Personal Injury Claim at Trial

I have previously discussed the use of clinical records in a personal injury trial and some limits of their use.  Despite these limits, clinical records can be used to undermine a personal injury claim in appropriate circumstances.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Lees v. Compton) the Plaintiff was injured in a 2008 collision.  At trial the Court accepted she was injured however concluded that “the injuries…did not impact on er life to the extent that she has claimed“.  In reaching this conclusion the Court relied heavily on admissions made in various clinical records.  Mr. Justice Goepel provided the following reasons:
[68]         The more difficult question is the impact that these injuries have had on the plaintiff’s life.  The plaintiff suggests that the injuries have had a significant impact on her life.  She says she has been forced to give up sports and is no longer capable of holding down a part-time job.  The plaintiff does acknowledge that her long time goal of being a university professor remains intact but submits that her injuries will in the future likely impact on her ability to fulfill the functions of that employment.
[69]         The excerpts in the clinical records suggest that the plaintiff’s limitations are not as great as she claims.  The records clearly put in question certain of the plaintiff’s evidence and raise issues as to her credibility.  The records indicate that the plaintiff has misled the Court with respect to playing field hockey subsequent to the accident, running subsequent to the accident, and the impact of the accident on her study habits…
[73]         In the course of the trial the plaintiff admitted that the physiotherapy notes were business records and admissible pursuant to s. 42 of the Evidence Act.  By definition, that means the document was made in the usual and ordinary course of business and it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time thereafter.  The notes record information that would be of importance to a physiotherapist in formulating an appropriate treatment plan. It is not the type of note which one would expect would be wrongfully recorded.
[74]         While I acknowledge the comments of N. Smith J. in Edmundson that clinical records must be viewed with caution, in this case there are eight separate notes that are in issue.  With regard to each note, the plaintiff claims the physiotherapist is wrong and she never gave the information in question because the information sets out activities in which she did not participate and indeed could not participate because of her injuries.
[75]         On the evidence before me I cannot disregard the physiotherapist’s notes.  While it is possible that a clinical note may be in error it is highly improbable that there would be eight such errors. There is also little evidence that contradicts the notes. As noted earlier, other than Ms. Welch, the plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s evidence was limited to her experience on one field hockey team. 
[76]         I find that the plaintiff made the statements to the physiotherapist that are recorded in the clinical notes. Those statements raise significant questions concerning the plaintiff’s credibility.  Her evidence must be viewed with great caution…
[83]         I find the plaintiff was injured in the accident.  As a result of the accident, she suffered soft tissue injuries which continued to cause her some difficulties.  The injuries, however, did not impact on her life to the extent that she has claimed.

$100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Pelvis Injury Cases. 52 Comments on $100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

Adding to this site’s archived cases addressing hip fracture non pecuniary awards, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury.
In this week’s case (Dunn v. Lyon) the Plaintiff was injured in a motorcycle collision in 2008.  The Defendant was fully at fault for the incident.  The Plaintiff suffered from various orthopaedic injuries primarily involving her low back and hip.  These went on to pose long term difficulties disabling her from her usual occupation as a server. In assessing non-pecuniary damages at $100,0000 Madam Justice Baker provided the following reasons:
[27]         No medical witness testified at trial and the language used to describe Ms. Dunn’s injuries in the clinical records and in the three expert reports is technical, but counsel agreed that the primary injury can be most briefly described as multiple pelvic fractures.  The fractures and other injuries are summarized on page 4 of Ms. Bos’s report as follows:
– left superior and inferior pubic rami
– right pubic tubercle
– left sacral ala
– left L5 transverse process
– widening of the left SI joint
– displaced bony fragment in the left S3 sacra foramina
– right anterior acetabular rim fracture
– haematomata involving piriformis and iliopsoas muscles
[28]         I infer that none of the fractures, although serious, involved significant displacement, as Dr. O’Brian decided surgery was not required.  Ms. Dunn was admitted to an orthopedic ward for bed rest although permitted to sit up in a chair provided that she did not put weight on the left side of her pelvis.  Her pain was treated with a variety of drugs, including Morphine with Gravol, Oxycodone and Tylenol…
[59]         Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the capacity to work either as a waitress or a janitor due to limited standing tolerance, decreased walking speed and limited stooping/bending tolerance.  Her primary limitation, according to Ms. Bos, is “standing/weight bearing tolerance”.   Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational testing and assistance with job search…
[94]         Having considered the authorities referred to and comparing the situations of the plaintiffs in those cases to that of Ms. Dunn, I award $100,000 for non-pecuniary damages.

"Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits. 50 Comments on "Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that if there was uncertainty as to whether Part 7 payments will be made there should be no deduction of damages.
In the recent case (Tsang v. Borg) the Plaintiff had damages for future care of $5,000 assessed at trial.  The Defendant asked the Court to largely discount this award pursuant to s. 83 of the Insurance (Vehicle) Act on the basis that many of the Plaintiff’s future treatments will covered by ICBC under the no fault benefits plan.  Mr. Justice McKinnon noted this argument was “inconsistent” with the Defendant’s trial position and in any event the evidence required for the deduction fell short of the mark.  In dismissing the application the Court provided the following reasons:
[9]             At trial the defendants claimed that the plaintiff’s injuries for the most part were not caused by the accident. In Paskall v. Schelthauer, 2012 BCSC 1859, the court held that the regulations limit the benefits to injuries that the corporation views flow from the accident. It strikes me as inconsistent for the defendants to now argue that the plaintiff is entitled to benefits payable under part 7 and more to the point, raises the distinct possibility that in future, the corporation will deny claimed benefits as “not flowing from the accident”.
[10]         In her affidavit, Shelley Ruggles, the insurance adjuster assigned to administer the plaintiff’s entitlement, indicates some uncertainty about whether future treatments are recoverable. She writes, “Further requests for treatment could be covered under s. 88 of the Regulations”. This suggests some uncertainty.
[11]         It is only where there is no uncertainty as to whether the insurer will accept the treatment and pay the cost that deductions can be made, see Ayles (Guardian ad litem of) v. Talastasin, 2000 BCCA 87. At bar there is no such certainty and I therefore resolve the issue in favor of the plaintiff.
[12]         The award of $5,000 stands.

Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

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

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.
In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:
[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.
[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.
[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.
[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….
[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.

Diminished Capacity Claims Open Door To Broad Cross Examination

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss.

Reasons for judgement were released this week by the BC Court of Appeal addressing the broad scope of permissible cross examination when a Plaintiff advances a claim for diminished earning capacity.
In this week’s case (McBryde v.Womack) the Plaintiffs were injured in various motor vehicle collisions.  Their claims proceeded to trial by Jury where only modest damages were assessed. The Plaintiffs appealed arguing numerous errors including the scope of the cross examination discussing government financial benefits that were received.  The Court of Appeal held that no overriding errors occurred at trial and upheld the Jury verdict.  In finding the broad cross examination fair game the Court provided the following comments:
[40]        Ms. Golestani contends that she should not have been cross-examined about receiving government financial assistance when immigrating to Canada or about leaving her studies to pursue the business opportunity with Mr. McBryde. Ms. Golestani initiated proceedings to recover damages from some of the respondents, and in so doing placed a number of matters in issue, including her earning capacity and her occupational goals. In my view, the cross-examination complained of was an attempt to explore these issues, and did not exceed the permissible limits of cross-examination. 
 

Contra Proferentem To The Rescue

Written by admin on . Posted in Uncategorized.

Contra Proferentem is a legal principle that is used to interpret ambiguous clauses in a contract against the party responsible for drafting the clause.  Reasons for judgement were released this week by the BC Court of Appeal using this principle to reinstate an insurance death benefit following a fatal plane crash.  (note of disclosure- my firm, MacIsaac & Company was involved in the prosecution of this case)
In this week’s case (McLean v. Canadian Premier Life Insurance Company) the Plaintiff’s spouse was killed when a chartered aircraft in which he was travelling crashed.
He had a $1 million Common Carrier Accidental Death Benefit Rider through the Defendant.  When the Plaintiff applied for payment the Defendant refused to pay arguing that the insurance did not cover crashes while on a Chartered flight.  The BC Court of Appeal disagreed and ordered that the Defendant pay the $1 million insurance benefit.  In finding that this flight was not excluded from coverage the BC Court of Appeal invoked the contra proferentem principle and provided the following reasons:
[14]         The court should give effect to the clear language of the contract, interpreted in the context of the agreement as a whole. It should also endeavour to interpret similar insurance contracts consistently. Where the language of the agreement reveals two possible interpretations, the court should seek to resolve this ambiguity by searching for an interpretation that reflects the true intent and reasonable expectations of the parties when they entered the contract, and achieves a result consistent with commercial reality and good sense. Considerations of reasonableness and fairness inform this exercise. An implied term should not be added to the contract unless it “goes without saying”, or is necessary to provide business efficacy. Nor should the court imply terms that render the express words of the contract meaningless, or contradict them. The onus to establish an implied term rests on the party seeking to rely on it: Perrin at para. 27; Wingtat Game Bird Packers (1993) Ltd. v. Aviva Insurance Company of Canada, 2009 BCCA 343 at para. 23, 96 B.C.L.R. (4th) 109.
[15]         If these principles do not resolve the ambiguity, the principle of contra proferentem will operate to favour construction against the insurer. This principle may not be used, however, to create or magnify an ambiguity…
[35]         I am satisfied it is therefore necessary and appropriate to invoke the doctrine of contra proferentem. While the coverage provision clearly requires that the insured be riding in a Common Carrier at the time of the crash, the words used to define a Common Carrier fall short of creating a clear temporal requirement for each of the definitional elements. Nor does the Rider create a clear exclusion for charter flights.
[36]         I agree with the appellant that the respondent could have easily remedied these deficiencies with clear language if it intended to exclude coverage for charter flights. It must bear the consequences of its failure to do so, and the temporal ambiguity must be resolved in favour of the appellant.
[37]         I conclude the trial judge erred in finding that, to be a Common Carrier, the aircraft had to be operating on a regular scheduled passenger service between defined points at the time of the accident.

$75,000 Non-Pecuniary Assessment for "Moderate, Substantially Resolved" Soft Tissue Injuries

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

Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial.   She continue to have some symptoms, however, and these were expected to be “here to stay“.  Despite finding that the Plaintiff  “is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
[105]     I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
[106]     There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
[107]     In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
[117]     With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
[118]     However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”…
[129]     In recognition of the fact that Ms. Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.

"Unreliable" Plaintiff Punished With Double Costs Award After Failing to Best Defence Offer

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

Update Auguaat 16, 2013 – In an interesting development, the below judgement was overturned by the Chambers Judge before entry of the costs order.  You can find reasons here
__________________________________________________________
Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to pay double costs to a defendant following a personal injury trial which failed to best the Defendant’s pre trial formal settlement offer.
In last week’s case (Gulbrandsen v. Mohr) was injured in a collision.  In the course of the lawsuit the Defendant offered to settle for $50,000.  The Plaintiff rejected this offer and proceeded to trial where a less favorable result was reached with damages being assessed at just over $28,000.
In the course of the trial the Court made negative findings about the Plaintiff’s reliability.  In stripping the Plaintiff of her post offer costs and ordering that the Plaintiff pay double costs to the Defendant Mr. Justice Affleck provided the following reasons;
[5]             In exercising that discretion there are three possible approaches I have considered. The first would be to award costs to the plaintiff up to the date of the offer and deprive her of costs thereafter. In my view that outcome cannot be justified. It would largely ignore the intent of the rules to provide for an award of costs in favour of a party who has made an offer which ought to have been accepted but was not. The second alternative would be to award the plaintiff costs up to the date of the offer and the defendant single costs thereafter. I would be inclined to make that award if the award of damages had fallen only slightly short of the offer. It did not.
[6]             The remaining possible outcome I have considered is to award the plaintiff costs to the date of the offer and to award the defendant double costs thereafter, as he proposes. The factor which might militate against doing so is the relative financial circumstances of the parties. The plaintiff is a woman of modest means. I know nothing of the remaining defendant, Mr. Mohr’s, means. The action was defended by counsel instructed by ICBC. The court may take into account the presence of insurance coverage when assessing the relative financial circumstances of the parties: Smith v. Tedford, 2010 BCCA 302 at para. 19. However, the presence of insurance coverage is not always a relevant factor. As the court observed in Hunter v. Anderson, 2010 BCSC 1591 at para. 22:
…it is in circumstances where a defendant’s insurance coverage creates an unfair advantage leading to unnecessary costs through testing the plaintiff’s case, where an insurer’s financial circumstances supplant those of the litigant as a factor to consider in determining costs.
[7]             I find that the presence of insurance coverage in the present case did not create an unfair advantage leading to unnecessary costs. It was the plaintiff who unreasonably rejected the defendant’s offer to settle. Therefore, I am unable to find a relevant significant disparity in the relative financial circumstances of the parties.
[8]             Unless there is some compelling reason to the contrary, the defendant is entitled to double costs from the date of the offer. Not only is there no reason to the contrary, in my view there is a compelling reason to accept the defendant’s argument. In my reasons for judgment which awarded damages to the plaintiff, I nevertheless found the plaintiff was an unreliable witness. This was not simply a matter of a witness who was honestly mistaken. I concluded the plaintiff had attempted to persuade me of facts that she knew were not true. On the costs hearing the plaintiff complained about my conclusions regarding her credibility but the costs hearing was not an occasion to re-argue her case for damages.
[9]             The plaintiff will be entitled to her costs up to the date of the offer to settle and the defendant will be entitled to double costs thereafter.

 One issue that apparently was not argued on this application was whether the Rules of Court allow for double costs in these circumstances.  While Rule 9-1 provides a Court with broad costs discretion following trials with formal offers in place, Rule 9-1(5)(b) seems to limit the Court to single post offer costs to a Defendant where they best their formal settlement offer.  I am not sure if this matter has been judicially considered but it is certainly an argument a Court would need to grapple with if asked to do so.

Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 56 Comments on Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing whether an expert report should be excluded because the expert reviewed the examination for discovery transcripts of the parties prior to authoring the report.  In short the answer is no.
In this week’s case (Friebel v. Omelchenko) the Plaintiff objected to the admissibility of two defence reports arguing that “it is improper to provide an expert with examination for discovery transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion“.  Madam Justice Ker rejected this submission finding this practice in and of itself does not render the report inadmissible.  In reaching this conclusion the Court provided the following reasons:
[22]         A review of Dr. Sobey’s reports does not give rise to any of the concerns underlying the previous criticism of the practice of allowing experts to review examination for discovery evidence.
[23]         Dr. Sobey was provided with a set of factual assumptions. Those factual assumptions are set out in detail in his report and where further assumptions have been drawn from a review of the documentary evidence those assumptions and their source have been indicated. For instance, at times, Dr. Sobey makes explicit reference to those assumptions and one example can be found at p. 13 of his July 19, 2013 report where in answering question five, he states, “I have been asked to assume that Dr. Omelchenko was available by telephone contact”.
[24]         Moreover, where Dr. Sobey did make factual assumptions from the documentary information provided to him, those assumptions are also clearly set out. As an example, see p. 10 of Dr. Sobey’s July 19 report where, in answering question two, he states:
Review of Dr. Omelchenko’s chart revealed that he obtained the drinking history, evaluated the Mr. Friebel [sic] for current symptoms of withdrawal, and documented the period since Mr. Friebel’s last drink. Dr. Omelchenko’s chart did not comment on whether Mr. Friebel was using other mood altering drugs. I note from the documents and specifically the PharmaNet profile that Mr. Friebel had been prescribed the sedative medication, Zopiclone…
[25]         When read as a whole, Dr. Sobey’s reports leave no doubt as to the factual assumptions underlying his opinion. As such, the case is distinguishable from Sebastian, supra, and the trier of fact is able to properly evaluate and discern whether the factual assumptions have been proven in evidence at trial and what weight should be given to Dr. Sobey’s opinion.
[26]         The plaintiff’s application to have the reports of Dr. Sobey excluded on the basis that he reviewed transcripts from examination for discovery is dismissed.

$80,000 Non-Pecuniary Assessment for TFC Tear Reqiring Surgery

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

Adding to this site’s archives of non-pecuniary judgments for wrist injuries, reasons for judgment were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TFC tear.
In this week’s case (Burtwell v. McCarrrey) the Plaintiff was injured in a 2009 rear end collision.  She sustained a TFC tear which required surgical intervention. In addition to this she suffered from various soft tissue injuries which continued to post problems at the time of trial.  In assessing non-pecuniary damages at $80,000 Madam Justice Fisher provided the following reasons:
[42]         I am satisfied that the plaintiff has proved that she suffered the following injuries as a result of the accident of January 20, 2009: (1) TFCC tear in the right wrist and aggravation of arthritis in the right CMC joint; (2) strain and tendonitis in the right shoulder; (3) soft tissue injuries to the neck and upper back; and (4) some depression and anxiety…
[51]         In summary, the TFCC tear caused considerable pain but was substantially resolved within 18 months of the accident, leaving an ongoing loss of strength and mild restriction in flexion; the CMC joint arthritis continues to be painful, will likely progress, and limits the use of the right hand; the shoulder injury also caused considerable pain for over three years, was significantly resolved by May 2012 and there is a good possibility for a more complete recovery by about January 2014 (four years post-accident); the neck and back pain resolved within four months and continues to flare up but will likely improve once Ms. Burtwell engages in a reconditioning program; and the depression is well controlled with medication and is likely to improve with additional counselling, after which medication may no longer be necessary…
[57]         It is always difficult to apply the facts of one case to another, as no two cases are really alike. In general, the awards at the $90,000 to $100,000 level were for injuries that had more serious long term effects than the injuries I have found Ms. Burtwell to have suffered, and the awards at the lower level were for similar injuries that had less impact. In my view, an appropriate award for non-pecuniary damages in this case, taking into account Ms. Burtwell’s pre-existing conditions, is $80,000.