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BC Court of Appeal Upholds Canadian National Boxing Champions $1,000,000 ICBC Hand Injury Case

Written by admin on . Posted in ICBC Hand Injury Cases, ICBC Wage Loss, Jury Trials, Uncategorized.


(Cross-Published at the Canadian MMA Law Blog)
Last year a Vancouver Jury awarded professional boxer  Jegbefumere ‘Bone’ Albert  just over $1,000,000 following a traumatic hand injury caused in a motor vehicle collision which negatively impacted his boxing career.  He was a professional cruiser weight at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic hand injury which flared with training/fighting.  The Jury accepted this impacted him in his chosen profession and awarded substantial damages for diminished earning capacity.
ICBC appealed arguing numerous errors at the trial level.  In unanimous reasons for judgement (Albert v. Politano) the BC Court of Appeal dismissed ICBC’s appeal and in doing so the Court provided the following comments addressing the lost opportunity of the plaintiff –
[50]        This brings us to the assessment of damages itself. The appellants say that each of the heads of damages assessed is wholly out of proportion to the evidence before the Court.
[51]        Damages are a question of fact and we may interfere with the quantum, absent an error of law or principle, only if there is a palpable and overriding error.
[52]        I deal with the loss of earning capacity first. I conclude, from the fact the jury awarded a significant sum, that the jury rejected the appellants’ submission that Mr. Albert would have withdrawn from a boxing career, soon after the accident, in any event. Clearly Mr. Albert had boxing ability. The jury must have considered that his boxing ability was diminished as the result of the injuries from the accident. It is true that Mr. Albert did not earn very much money from boxing prior to the accident. It is also true that there was not a great deal of evidence about the size of the purses available in professional boxing. Nonetheless there was some evidence. Witnesses from the world of boxing did testify to some extent as to the purses won in certain matches, particularly in Canada. There was evidence, therefore, before the jury from which they could conclude that Mr. Albert had the skills to fight for, and win, purses in the time between the accident and the trial, amounting to $60,000. The period of past loss is close to four years. The sum awarded is well within the range of the purses that were discussed in the evidence as available, in Canada, over that period of time. Given the positive evidence as to Mr. Albert’s abilities, one cannot say the award of $60,000 for past income loss is unsupported by the evidence, disproportionate, or wholly erroneous.
[53]        I have come to the same conclusion in respect to the award for future loss. That sum may be a small portion of what Mr. Albert otherwise would have earned, or it may be more than he would have earned. We do not know. There was, however, evidence of his considerable abilities and evidence of the purses available in the boxing world, even in Canada, that would support an award of $838,000. I would not interfere with the award for future loss of earnings.
I‘d like to thank Vancouver lawyer John Cameron for sharing this development with me for publication.
 

$60,000 Non-Pecuniary Assessment For Chronic Moderate Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Adding to this site’s soft tissue injury damage archives, reasons for judgement were released earlier this year by the BC Supreme Court, New Westminster Registry, addressing damages for chronic moderate soft tissue injuries imposed on a pre-existing condition.
In the recent case (Graydon v. Harris) the 65 year old plaintiff was injured when his vehicle was struck by a large industrial garbage truck.  The Defendant was found fully at fault for the collision.  The Plaintiff suffered from pre-existing neck pain and headaches due to a degenerating spine.  The Collision resulted in soft tissue injuries which aggravated these issues.  In assessing non-pecuniary damages at $60,000 Mr. Justice Weatherill provided the following reasons:
 
[67]         Based upon the evidence before me, I find that the plaintiff is a very stoic and hardworking man who has suffered a moderate soft tissue injury to his neck, lower back and shoulders as a result of the October 25, 2007 accident.  I also find that, at the time of the October 25, 2007 accident, the plaintiff was suffering from pre-existing neck pain, headaches and a degenerative condition of the cervical spine.  That is why Dr. Koelink was continuing to prescribe Tylenol 3 for him.  The soft tissue injuries suffered during the October 25, 2007 accident exacerbated his pre-existing condition.
[68]         Despite some inconsistencies in his evidence, I find that the plaintiff’s injuries have had and will have a lasting effect on his work life and, to a lesser degree, on his home and recreational life.  He continues to be able to work but not without pain and discomfort.  He continues to have headaches which flare up when he is welding. 
[69]         He is able to travel both for vacation and work without adverse effects with the exception of occasional numbness in his left leg after sitting for prolonged periods of time.  However, as Dr. Craig testified, that discomfort can be eased by changing position.
[70]         The plaintiff was suffering from pain, headaches and a degenerative condition of the cervical spine well before the October 25, 2007 accident.  In my view, there is at least a 25% chance that the plaintiff’s pre-existing condition would have interfered with his work and other activities had the October 25, 2007 accident not occurred.
[71]         After considering all of the plaintiff’s circumstances, the principles set out in Stapley and the cases provided by counsel, and after applying a 25% contingency in respect of the plaintiff’s pre-existing condition, I find that an award of $60,000 for non-pecuniary damages is appropriate.

Appeal of Criminal Conviction Deemed Sufficient Reason to Adjourn Personal Injury Trial

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Interesting reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing an adjournment of a personal injury trial when collateral criminal proceedings were ongoing.
In last week’s case (Gillespie v. Pompeo) the Defendant police officer shot and injured the Plaintiff.  The police officer was charged and convicted of aggravated assault.  He appealed the conviction.  Before the appeal was disposed of the Plaintiff’s injury claim was scheduled for trial.  The Defendant applied to adjourn the trial until the criminal matter was disposed of.  In finding this appropriate Mr. Justice Baird provided the following reasons:
[11]         Section 71 of the Evidence Act, R.S.B.C. 1996, c.124, provides that a conviction that is not subject to appeal, or from which no appeal is taken, may be admitted as evidence on a civil trial as proof that the convicted person committed the offence…
[15]         Defendant’s counsel submitted that the presently scheduled civil trial in June will involve a second full trial on precisely the same evidence and issues as those already given a comprehensive airing on the criminal trial in Provincial Court. The same witnesses will be called on the issue of liability and the same defence of justification under section 25 of the Criminal Code will be advanced.
[16]         Defendant’s counsel has conceded, quite properly, that there can be no civil trial on the question of liability if the conviction stands and all appeals are abandoned or exhausted…
[19]         As things stand, the defendant has been criminally convicted of aggravated assault. There can be no assumption at this stage that a civil trial will yield a different or more accurate result. If the conviction is upheld it will be the end of the matter for the purposes of liability, and a civil trial conducted in the interval will have been a colossal waste of judicial resources and the time, money and effort of the parties and witnesses alike. Finally, dual proceedings on the same issues and facts give rise to the spectre of inconsistent verdicts, an eventuality to be avoided in the interests of maintaining the credibility of the judicial process.
[20]         For these reasons I conclude that an adjournment of the civil trial is in the best interests of justice.

Court Clarifies Recovery of Interest on Disbursements

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Update November 17, 2014 – in Reasons released today the BC Court of Appeal overruled the below decisions and found interest on disbursements cannot be recovered.
 
—————————–
Prosecuting an injury claim to trial often involves thousands if not tens of thousands of dollars in disbursement expenses.  If a litigant is victorious can they claim interest on these expenses?  Two competing judgement were heard together on appeal clarifying this issue (Chandi v. Atwell).  In short, Mr. Justice Savage held that interest on disbursements can be recoverable.  The Court provided the following reasons:
[28]         In Milne, the plaintiff was injured in an automobile accident. Following the injury, the plaintiff had three M.R.I. examinations over three years. An account was rendered to the solicitor for the M.R.I. examinations, which included interest on the unpaid balances. The account was paid.
[29]         The action was settled for an agreed sum, plus costs. The matter of costs was referred to the registrar, who ruled that the interest component of the M.R.I. account could not be recovered as part of a cost assessment. The appeal came to the Supreme Court as an appeal of the decision of a master sitting as a registrar of the court.
[30]         Mr. Justice Burnyeat considered various decisions of registrars and masters, which were in apparent conflict….
[32]         Mr. Justice Burnyeat held as follows:…
the law in British Columbia is that interest charged by a provider of services where the disbursement has been paid by counsel for a party is recoverable as is the disbursement. The interest charge flows from the necessity of the litigation. If the disbursement itself can be assessed as an appropriate disbursement, so also can the interest owing as a result of the failure or inability of a party to pay for the service provided. In order to obtain the M.R.I., it was necessary to pay not only the $975.00 cost but also the interest on any unpaid balances that were not paid immediately. The cost plus interest was the cost of obtaining the M.R.I. The claim for interest should have been allowed.
[70]         To the extent that Burnyeat J. preferred the reasoning in McCreight to the reasoning in the other cases, I note that of these cases, only Hudniuk was from a fellow judge. Hudniuk is obiter dicta in an oral ruling delivered to counsel while considering a jury charge. When confronted by conflicting decisions from masters and registrars and obiter dicta from a fellow judge in an oral ruling that was at best nisi prius, Burnyeat J. was bound to decide the correct interpretation according to his best lights, which he did: R. v. Pereira, 2007 BCSC 472 at para. 48, citing Young v. Bristol Aeroplane Co., [1944] 2 All E.R. 293 (C.A.).
[71]          In the result, judicial comity persuades me that I should follow the decision in Milne. There is nothing in the interests of justice that persuades me to exercise my discretion to depart from this practice.

Court of Appeal Discusses Standard of Care In Road Construction Liability Cases

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized. 48 Comments on Court of Appeal Discusses Standard of Care In Road Construction Liability Cases


Reasons for judgement were released this week by the BC Court of Appeal upholding a trial verdict finding the City of Abbotsford and a private contractor 80% responsible for a single vehicle collision in a construction zone.
In this week’s case (Van Tent v. Abborsford) the plaintiff was riding his motorcycle through a construction zone when he drifted over the fogline to his right.  There was a two inch drop off in the pavement level due to on-going construction.  The Plaintiff lost control and was injured.
The Plaintiff was found partially at fault for not driving safely, however, the Defendants bore 80% of the blame for “failing to adequately mark the uneven pavement“.
The trial judge found that the Ministry of Transportation’s Traffic Control Manual for Work on Roadways was informative of the standard of care.   The Defendants “failed to adhere to several of those standards“.  In finding that this was an appropriate standard of care to hold the Defendants to the BC Court of Appeal provided the following reasons:
[11]         Sections 138 and 139 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, require traffic control devices be erected on a highway when there is construction. Those sections read:
Work in progress
138  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected indicating that persons or equipment are working on the highway.
Erection of speed sign
139  On a highway where new construction, reconstruction, widening, repair, marking or other work is being carried out, traffic control devices must be erected to limit the rate of speed of vehicles or to restrict the manner in which the vehicles are to proceed on the highway.
[12]         The Ministry of Transportation’s Traffic Control Manual for Work on Roadways [the “Manual”] contains prescribed standards for designing and implementing traffic control plans for construction zones on British Columbia highways.  Section 1.1 states that the examples provided within the Manual are “generally the minimum required”…
 
[45]         As already noted, the trial judge held at para. 93 of her reasons that s. 138 of the Motor Vehicle Act and the Manual informed the standard of care expected of a reasonably prudent contractor in the circumstances.  (Although not specifically mentioned, s. 139 is of relevance as well.)  She found in fact that the appellant contractor fell below this standard in a number of ways, beginning at para. 71:
[71]      In this case, the standard of care is greatly informed, although not dictated, by the collection of uniform traffic control standards detailed in the Manual.  By virtue of performing construction work on a provincial highway, the defendants were required, at a minimum, to abide by the principles and guidelines it contained.  The applicable standards endorsed in the Manual accord with common sense and the conduct expected of a prudent contractor in the circumstances in relation to the task of ensuring the safety of the users of the road and work crews during times of construction and maintenance.
[72]      In my view, the defendants failed to adhere to several of those minimal standards.  With respect to many of them, Mr. Stewart variously seemed not to know of them or appreciate their application or the complexities of the planning work that was required of him in creating and implementing an appropriate traffic control plan.
[46]         The errors identified by the appellants are findings of fact made by the trial judge.  The appellants have not identified any palpable or overriding errors that would warrant intervention by this Court.  Those findings of fact are amply supported by the evidence.  I conclude that the trial judge did not err in describing the standard of care, or in concluding that it was breached by the appellants.

Court Ordered Interest Allowed on Unpaid Special Damages

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It is well established that a litigant in a BC injury claim is entitled to court ordered interest on successful special damages claims.  What about special damages that are owing but have have not yet been paid?  Is interest recoverable on these?  Reasons for judgement were released last week addressing this topic and the answer is yes.
In last week’s case (Thibeault v. MacGregor) Mr. Justice Weatherill provided the following analysis:
[134]     I agree with Mr. Walton that the plaintiff is entitled to interest pursuant to the Court Order Interest Act (COIA) on the special damages I have awarded, even though the charges for physiotherapy have not yet been paid.  The relevant section of the COIA provides:
(1) Subject to section 2, a court must add to a pecuniary judgment an amount of interest calculated on the amount ordered to be paid at a rate the court considers appropriate in the circumstances from the date on which the cause of action arose to the date of the order.
(2) Despite subsection (1), if the order consists in whole or part of special damages, the interest on those damages must be calculated from the end of each 6 month period in which the special damages were incurred to the date of the order on the total of the special damages incurred
(a) in the 6 month period immediately following the date on which the cause of action arose, and
(b) in any subsequent 6 month period.
[emphasis added]
[135]     Black’s Law Dictionary, 9th ed. defines “incur” as “[to] suffer or bring on oneself (a liability or expense)”.  The plaintiff became liable for the cost of her physiotherapy payments when she either attended or missed her appointments.

"Nonsensical" Objection to Statistical Evidence Rejected

Written by admin on . Posted in ICBC Wage Loss.

Statistics have their place in trial.  When proving average earnings of certain occupations the shortcut of referencing statistical data can be of great value and save time and money.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing this.
In last week’s case (Smith v. Fremlin) the Plaintiff was injured in a 2009 collision.  She was a recent law school graduate at the time just entering her career in law.  It was found that, as a result of the injury, she likely could not compete in private practice and would have lifelong limitations in her working capacity.  The Plaintiff introduced statistical evidence of the present day value of a lifetime of earnings for legal professionals.  The Defendant objected to this arguing witnesses of fact instead should be called to address this.  In rejecting this “fundamentally flawed” objection Mr. Justice Groves provided the following reasons:
[43]         Counsel for the defendants took significant objection to the report of Robert Wickson.  At trial, I rejected their argument that the report should not be admitted as evidence.  The substance of that argument is worth considering in these Reasons. 
[44]         It was the position of the defendants that any report which attempts to provide evidence to the court as to average income of persons within certain employment designations is fundamentally flawed.  It was the position of the defendants that the court should require the plaintiff to produce evidence of persons, working as practicing lawyers, who could testify as to what they earn.  The suggestion was further made that these witnesses should be women practicing law in British Columbia. 
[45]         One must keep in mind that all parties appear to have agreed to this matter being litigated under the Fast Track model in three to four days.  It is nonsensical to require a party to prove a claim by calling a potentially large number of witnesses, in this case, female lawyers in British Columbia of the same age, to testify.  It is folly not only as to the time and cost, but also as to the possibility of finding this information in advance.  It would require people to willingly disclose their income.  Additionally, it is folly when one considers the number of persons that would have to be called to create any level of statistical reliability. 
[46]         What this Discovery Economic Consulting report shows is that for persons who fall within the NOC classification of ”Lawyers and Quebec Notaries”, the potential earning capacity is approximately $1.94 million over the course of their career.  Importantly, the persons that fall within this classification are a much larger body of persons then simply practicing lawyers.  Although numerous types of lawyers and notaries are included in this classification, it also includes judicial assistants, advisory counsel, articling students, advisors of law and corporate affairs, and a number of other job classifications which may not require law degrees, such as legal officers and legislative advisors. 
[47]         I accept that this report is evidence of lifetime capacity for someone with the career path that Ms. Smith was undertaking.  In fairness, however, the number should be increased as a number of persons falling within the classification are not lawyers and employed in occupations, likely to be earning less, such as articling students.  I find that working to age 69 is not unreasonable.  As such, I would find that a reasonable dollar figure for lifetime earnings for a lawyer is $2,000,000.

Concussion Lawsuits – Are the Floodgates About to Open in the MMA World?

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The below post is cross-posted from my Canadian MMA Law Blog; 
__________________________________________________________________________

This weekend another sports related concussion lawsuit has hit the media.  This time  its the NHL making headlines.
The family of late enforcer, Derek Boogaard, hasfiled a wrongful death claim against the NHLarguing the League is responsible for brain damage the feared fighter sustained in his years playing professional hockey.  He had at least 66 on ice fights in his professional career.
Such lawsuits are becoming more commonplace in the world of professional sports.  These lawsuits are often grounded in the theory that sports organizations allow athletes to compete while undermining or concealing the risk of injury.  So what does this have to do with MMA?  It is likely a foreshadowing of things to come.  More importantly, it is a good opportunity to get ahead of a potential problem for the betterment of the sport.
The NHL and NFL are mature leagues with a lengthy history.  There are generations of retired athletes with long term data to draw from comparing these athletes to retired members of the general population.  One pattern that is becoming clearer is that of Chronic Traumatic Encephalopathy and its relationship to long term involvement in contact sports.  Athletes who experience repetitive brain trauma over their careers have a greater chance of developing this degenerative disease.   The relationship of brain dysfunction and exposure to repeated sub-concussive trauma is also becoming better understood. As the long term health of more retired athletes is studied, a greater understanding of this pattern occurs.
While there is clearly homework to be done in terms of this link and MMA, the one thing the UFC and other MMA organizations can learn from these lawsuits is to get ahead of the curve.  There is nothing to gain by taking an ostrich approach to brain trauma.  Instead MMA leagues should take meaningful steps to acknowledge these risks head on and encourage their athletes to learn about the full known risks that come with participation.  As retired Canadian MMA fighter Nick Denis demonstrated, not all fighters agree to carry on with a career in MMA after learning of the risks.  Failing to facilitate athlete’s appreciation of CTE and other long term consequences not only undermines informed participation, it can also lead to the legal troubles that are now plaguing the NHL and NFL.
Dana White, president of the UFC, has, to his credit, done much for the growth of MMA and aiding in the creation of its regulatory framework.  However, in the process the plain speaking promoter has made some foolish representations along the lines of MMA being the ‘safest sport in the world’.  This hyperbole can be forgiven by the average fan who understands that Dana is speaking from a desire to assist the growth of the sport and refuting political resistance such as the well worn ‘human cockfighting’ soundbite.  Such reckless statements, however, can have an unintended impact in the legal context if a fighter who is diagnosed with CTE turns to legal action.
Organizations will be best served by not undermining these risks.  Concussive injury should not be downplayed as it was by the flippant attitude shown to Matt Mitrione in face of his voiced concussive concerns in season 10 of TUF.  While this may have made for better ratings, encouraging an attitude which undermines concussive injuries is not in the long term interests of athletes nor MMA organizations.  If this attitude is pervasive in the organization there could be unwanted legal repercussions down the road.  Stake holders should not wait for the legal floodgates to open before addressing this issue.

Defense Expert Witness Receives Judicial Drubbing

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Whiplash Cases. 1 Comment on Defense Expert Witness Receives Judicial Drubbing

It seems there has been a lot of judicial scrutiny as of late of expert witnesses crossing the line into client advocacy.   Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, providing the latest example of this.
In last week’s case (Thibeault v. MacGregor) the Plaintiff was injured in a 2010 collision.  It was a so-called ‘low velocity impact’ but the Court rejected this defence and found the Plaintiff did sustain a moderate whiplash injury.  Non-pecuniary damage were assessed at $35,000.  In the course of the lawsuit the Defendant arranged for an independent medical exam of the Plaintiff.  This physician provided opinion evidence which the Court largely rejected.  In doing so Mr. Justice Weatherill provided the following criticism:
[95]         Counsel provided detailed written submissions on the issue of the Vondette Report’s admissibility.  I agree generally with the submissions of plaintiff’s counsel.  Dr. Vondette’s report is prolix in the extreme.  Dr. Vondette’s review of the plaintiff’s background was beyond thorough and comprehensive – it reported the minutia of the plaintiff’s social, family, psychological and medical history.  He opines on matters that have no relevance to the plaintiff’s claim in this proceeding: He overreaches into the areas reserved for the trier of fact.  He makes remarks that go solely to the plaintiff’s credibility.  His report in many places is argument in the guise of opinion.  Much of the report purports to be opinion when what is written is not an opinion at all but rather a regurgitation of the plaintiff’s complaints. ..
97]         After hearing counsel’s submissions, I concluded that Dr. Vondette was probably an expert whose opinions, properly articulated, could be of benefit to the Court.  Although I found the vast majority of the Vondette Report to be inadmissible, I decided that it was in the interest of justice to grant leave allowing Dr. Vondette, with counsel’s assistance, to produce a summary of those portions of the Vondette Report that are properly admissible.
[98]         Dr. Vondette did so.  His summary (“Summary”) is two pages in length and captures succinctly and helpfully the opinions he was attempting to express in his report.  The Summary, together with counsel’s letter of instruction and appendices “A” and “E” from the Vondette Report were collectively marked as Exhibit 7.
[99]         Unfortunately, Dr. Vondette’s oral testimony was not as helpful as was the Summary.  He returned to the prolix method of communicating that he suffered from when writing his report.  He sought to justify this communication method on the basis that “I am a competent and thorough physician” and that any review of the plaintiff’s circumstances that was less than comprehensive and itemized is “rubbish”.
[100]     Dr. Vondette pontificated throughout his testimony regarding the virtues of his specialty and his experience within it.  In addition to the field of physiatry, he apparently views himself as having bountiful knowledge in other specialties in which he has no formal training, including psychiatry, psychology gynecology, physiotherapy, family medicine, social work and occupational therapy.  He testified that his expertise is such that he tells physiotherapists “exactly what I want done”…
[103]     Dr. Vondette was argumentative and condescending throughout his cross-examination.  Virtually all of his answers were lengthy monologues.  He was critical of Dr. MacKean’s March 5, 2012 report because it was only two pages in length.  He was critical of her December 5, 2012 report because, in forming her opinion, she reviewed and relied upon only her March 5, 2012 report and Dr. Salmaniw’s two July 2012 reports. 
[104]     Dr. Vondette refused to agree that Dr. Salmaniw, as the plaintiff’s family doctor for more than 20 years, knew more about the plaintiff and what was best medically for her than he did after a three hour consultation.  In Dr. Vondette’s words: “I think I can reasonably size up what’s going on here”.
[105]     Finally, Dr. Vondette described Mr. Harvie’s physiotherapy methods as “strange off-shore theories followed by a bunch of over-excited disciples”.  In his view, the plaintiff needed to be taken out of the hands of Mr. Harvie and sent to a physiotherapist who is more orthodox and who performs scientifically validated forms of treatment.
[106]     Needless to say, the approach to the role of an expert witness in the context of court proceedings that Dr. Vondette followed is unhelpful, counterproductive and is to be discouraged.  It is not within the purview of an expert witness to determine facts or issues of credibility and reliability: Brough v. Richmond, 2003 BCSC 512 at paras. 14 – 17.  Unfortunately, Dr. Vondette allowed his subjective views of the plaintiff formed from his review of her medical and personal history to overwhelm whatever impartiality he may initially have had.  I have been unable to take meaningful guidance from his opinions and testimony.  To the extent that his opinions conflict with those of Drs. Salmaniw, MacKean and Reeves, I accept the opinions of the latter experts and reject those of Dr. Vondette.

Non-Disclosed Medical Report Leads to Adverse Inference in Cervical Radiculopathy Injury Claim

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, commenting on “the failure of the defence” to produce a medical report they agreed to exchange in the course of an injury lawsuit.
In this week’s case (Chekoy Sr. v. Hall) the Plaintiff was involved in a 2007 collision.  Fault was admitted by the Defendant   The Plaintiff suffered a cervical radiculopathy as a result of the crash and had non-pecuniary damages assessed at $75,000.  In the course of the lawsuit the Plaintiff agreed to attend an independent medical exam requested by the Defendant in exchange for a copy of the resulting report.  The report was never produced.  In reaching his assessment of the evidence and this development Mr. Justice Masuhara provided the following comments:
[67]         Though the plaintiff attended an independent medical examination requested by the defence.  The defence did not adduce any medical evidence challenging the plaintiff’s medical evidence.  Mr. Gertsoyg produced a letter which stated that his client would attend an independent medical exam requested by the defence in exchange for a copy of the resulting report.  Ms. Tonge wrote back agreeing to do so.  For some reason, a copy was not provided to Mr. Gertsoyg.  During the course of the trial, Ms. Tonge was requested by Mr. Gertsoyg to produce the report.  Ms. Tonge refused and when asked by Mr. Gertsoyg in court to provide the report she stated that she did not have with her.  She did not offer to get and provide it. ..
[85]         In any event, the medical opinions all support objectively the fact that Mr. Chekoy has symptoms from cervical radiculopathy.  As noted earlier the defence did not tender any medical evidence though it obtained an independent medical examination and report of the plaintiff.  The failure of defence counsel to produce the medical report which counsel had agreed to provide to plaintiff’s counsel, without an adequate explanation, allows for an adverse inference to be drawn in this regard.  The defence’s theory that the plaintiff’s neurologic problems relate to physiotherapy treatments, chiropractic treatments, or from the plaintiff lifting a tool box on the back of a pickup has not been established; I note Dr. Golin’s did not accept that theory.  While the defence raised the question of the delay in symptoms, I accept the medical evidence that there is considerable variability in symptom onset.
[86]         On balancing the totality of the evidence including the failure of the defence to produce its independent medical report, I find that the Accident is the cause of the plaintiff’s cervical radiculopathy and not from the natural progression of the plaintiff’s pre-existing degenerative disk disease, subsequent treatments, or other events.