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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.

$45,000 Non-Pecuniary Assessment For 4 Year Soft Tissue Injury With Good Prognosis

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on $45,000 Non-Pecuniary Assessment For 4 Year Soft Tissue Injury With Good Prognosis

Adding to this site’s archived soft tissue injury caselaw assessments, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic soft tissue injury with an ultimately good prognosis.
In the recent case (Chingcuangco v. Herback) the Plaintiff was involved in a 2008 collision for which she was not at fault.  She suffered soft tissue injuries to her neck and back which continued to pose problems at the time of trial.  Despite their long duration the prognosis for full symptom recovery was good with the Court finding they would resolve within a further 5 years.  In assessing non-pecuniary damages at $45,000 Mr. Justice Weatherill provided the following reasons:
[197]     The plaintiff felt some immediate pain in her chest and right toe after the accident.  She had no loss of consciousness.  X-rays taken at the hospital shortly after the accident were negative.  As the days and weeks progressed, she developed debilitating pain in her neck and lower back, with resulting headaches.  She had bruising on her chest and abdomen.  She was unable to go to work at CRA for two weeks.
[198]     The bruises and the pain she suffered in her chest and right toe pain resolved completely within six weeks.  Although she thought her lower back pain had resolved by the end of 2009, she has since experienced severe flare-ups several times since then.
[199]     The plaintiff has tried various modalities of treatment.  They have provided temporary but not permanent relief.  The plaintiff continues to experience persistent pain and muscle spasms.  She will continue to have episodic flare-ups of pain in her lower back and cervical spine with associated headaches.  I am satisfied that such episodes have been and will continue to be the result of the injuries she suffered during the September 15, 2008 accident…
[201]     I find that the plaintiff suffered a Grade II whiplash injury as a result of the September 15, 2008 accident.  She also suffered contusion injuries to her chest and lower abdomen, chest wall strain and a chipped tooth.  Over four years have passed since the accident and she still suffers from intermittent neck and lower back pain and tension headaches as a result of the accident.
[202]     I find that it is reasonable to expect the plaintiff will be fully recovered within five years.  In part, I make this finding on the basis that the plaintiff is an achiever.  Dr. Mergens gave evidence that she might still suffer some muscle tension headaches for an indefinite period.  He did say these symptoms may dissipate with time and conditioning.  However, there is no reasonable prospect of permanent impact upon her capabilities.
[203]     After considering all of the evidence, the submissions of counsel and the case authorities, I find that an appropriate award for non-pecuniary damages in this case is $45,000.

Defence Psychiatrist Rejected for Basing Opinion on "Facts That Are Wrong"

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

In my continued effort to highlight judicial scrutiny of expert witnesses, reason for judgement were released last week by the BC Supreme Court, Kamloops Registry, rejecting an expert psychiatric opinion.
In last week’s case (Moritz v. Schmitz) the Plaintiff was injured in a 2007 collision.  She was 17 years old at the tine and “was a healthy teenager“.  The collision caused chronic soft tissue injuries along with a worsening of pre-existing psychological difficulties.  The Court awarded $80,000 for the Plaintiff’s non-pecuniary damages.
In the course of trial the Defendant called a psychiatrist who provided an opinion that the collision was not the cause of the Plaintiff’s aggravated pscyhological difficulties.  In rejecting this opinion Madam Justice Gropper provided the following critical comments:
[70]         Dr. Solomons goes on to suggest that, in his opinion, it is “most likely that the course of her psychiatric difficulties after the accident was related to stressors unrelated to the accident”, referring to matters that occurred prior to the motor vehicle accident. He then concludes that the plaintiff would have experienced the same symptoms even if the accident had not occurred. Again, Dr. Solomons does not provide a foundation for his opinion that the problems Ms. Mortiz faced before the accident are of greater significance than those she faced because of the accident. He was aware that the plaintiff suffered from physical injuries but he does not turn his mind to whether those injuries may have affected her psychiatric functioning.
[71]         Dr. Solomons does not explain his emphasis on pre-accident events. This same observation in respect of Dr. Solomon’s emphasis on pre-accident events was made by Mr. Justice Willcock in Jokhadar v. Dehkhodaei, 2010 BCSC 1643 at para 135:
Further, there is no reason, in my view, to regard stressors other than the car accident as more compelling or predominant. Dr. Solomons, in reaching that conclusion, ignored clear evidence of the significance of the accident.
[72]         I also note that Dr. Solomons’ final paragraph under the “Opinion” section of his report is based on “facts” that are wrong. He says Ms. Moritz was “psychiatrically disabled before the accident and was not working at the time of the accident.” He fails to note that she was 17 years old and in grade 12 at the time of the accident. She was not psychiatrically disabled from working. He says that “[s]he had no psychiatric requirement for time off work as a result of the accident since she was already on long term psychiatric disability … .” Again, she was not off work because of her psychiatric disability before the accident; nor was she on long-term psychiatric disability. In all of the circumstances, I am unable to accept Dr. Solomons’ opinion.

Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Written by admin on . Posted in Civil Procedure, ICBC Liability (fault) Cases. 49 Comments on Prior Consistent Statements Considered in Vicarious Liability Impaired Driving Case

Reasons for judgement were released this week by by BC Supreme Court, Chilliwack Registry, addressing the issue of implied or express owner consent following a motor vehicle collision involving an impaired driver.
In this week’s case  (Gibbs v. Carpenter) the Defendant Carpenter was driving a vehicle owned by the Defendant Kusch.  She denied giving him permission to drive the vehicle.  He was “impaired by alcohol” when he “crossed the centre line and collided head on” with the Plaintiff vehicle.
Mr. Justice Joyce had to decide whether there was consent for him to drive.  There was conflicting evidence on this point and the Court ultimately made the call that there was no express or implied consent letting the owner off the hook.  Prior to deciding this issue the Court grappled with whether a written statement the owner gave the police was admissible.
In the aftermath of the collision the owner provided the police with a verbal statement indicating that consent for the trip was not given or if it had been the owner expected someone else to drive.  This statement was admitted into evidence   The owner provided a more fullsome written statement to the police following this.  The owner attempted to get the written statement into evidence arguing it formed part of the original statement or in the alternative that it was needed to rebut an allegation of recent fabrication. Mr. Justice Joyce disagreed and excluded the statement. In doing so the following useful summary of the law was provided:
[61]         I am unable to agree that the written statement forms part of one continuous statement, given the intervening events. It is not as though the statement was given at the scene mere minutes after the first conversation. Ms. Kusch went home, slept, spoke to her father about what had happened and it was upon his suggestion that she prepared a written statement. Ms. Kusch had the opportunity to reflect and consider what information she would include in her statement. In my view, it cannot be considered a mere continuation of the earlier oral statement.
[62]         As for the submission that the written statement should be admitted to clarify the equivocal oral statement, the trial was the opportunity to testify whether the oral statement was made or not, whether it was accurate or not, whether Constable Wright’s version of what Ms. Kusch said was complete, or whether his recall and recording of the statement were incomplete. I, therefore, do not accede to Mr. Harris’ first ground.
[63]         I am also of the opinion that the statement is not admissible as a prior consistent statement rebutting an allegation of recent fabrication.
[64]         In R. v. Stirling, 2008 SCC 10 [Stirling], Mr. Justice Bastarache reviewed the principles applicable in determining when prior consistent statements can be led to rebut an allegation of recent fabrication and how such statements, if admitted, are to be used. The context in which the issue arose in Stirling is set out in paras. 1 – 2:..
[68]         Thus, the purpose of the prior consistent statement is to remove a potential motive to fabricate and a trial judge may consider the removal of this motive when assessing the witness’s credibility.
[69]         In the recent decision delivered from the Ontario Court of Appeal, R. v. Kailayapillai, 2013 ONCA 248 at para. 41, I note that Mr. Justice Doherty adopted the phrase “motive or reason” to fabricate and discussed the importance of the timing of the statement in relation to when the motive or reason arose:
[41]      … The value of the prior consistent statement does not rest exclusively in its consistency with the evidence given by the witness at trial. It is the consistency combined with the timing of that prior statement. As the statement was made before the alleged motive or reason to fabricate arose, the statement is capable of rebutting the suggestion made by the cross-examiner that the witness’s evidence is untrue because it was fabricated for the reason or motive advanced in cross-examination. The witness’s evidence is made more credible to the extent that the asserted motive or reason advanced for fabrication has been negated by the evidence of the prior consistent statement: see R. v. Stirling, 2008 SCC 10, [2008] 1 S.C.R. 272, at paras. 5-7.
[Emphasis added.]
[70]         Once admitted, the trial judge may not use the prior consistent statement for the truth of its contents. At para. 11 of Stirling, Bastarache J. said:
[11]      Courts and scholars in this country have used a variety of language to describe the way prior consistent statements may impact on a witness’s credibility where they refute suggestion of an improper motive. …. What is clear from all of these sources is that credibility is necessarily impacted ? in a positive way ? where admission of prior consistent statements removes a motive for fabrication. Although it would clearly be flawed reasoning to conclude that removal of this motive leads to a conclusion that the witness is telling the truth, it is permissible for this factor to be taken into account as part of the larger assessment of credibility.
[71]         In the present case, any reason that Ms. Kusch may have to fabricate a story was clearly present at the time she prepared her type-written statement. She faced having to explain to her father, a police officer, how an inebriated young man with a learner’s permit came into possession of her car and came to be involved in a serious car accident. She may very well have appreciated that there might be insurance implications arising out of who was driving. She may also have been influenced by the advice of her father in forming her statement. The statement was not prepared prior to the existence of a reason to fabricate; it was formed afterward. In my view, it does not have any probative value and does not fall within the exception to the general rule that excludes prior self-serving statements. It is not admissible.

Facebook Strikes Again

Written by admin on . Posted in Uncategorized. 111 Comments on Facebook Strikes Again

In yet another example of a personal injury claim being undermined by postings on social media, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating a Facebook posting undoing a claimed damage.
In this week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  She sued for damages and her claim was partially successful.  An aspect of her claim that was not accepted dealt with driving anxiety.
The Plaintiff claimed that one of the consequences stemming from the collision was “a driving phobia“.  The Court did not accept this finding that the Plaintiff was “an unreliable historian“.  In coming to this conclusion the Court referenced the Plaintiff’s own Facebook posting and provided the following reasons:
[126]     Ms. Neyman’s evidence that she continues to suffer from a driving phobia, albeit one that has improved, is also questionable. Before a Facebook posting that she made on January 9, 2009 was put to her, she gave the impression in her evidence that she generally suffered from anxiety after the Accident, but that it improved with time. In her Facebook posting, she wrote about driving her mother’s manual transmission BMW late at night and at high speed. The entry reads:
Angela Neyman is finally remembering how awesome it is to drive 120 clicks on a clear road in her car (Ang ?’s Speedy G).
[127]     I found that Ms. Neyman’s responses to questions during cross-examination about that entry reflected poorly on her credibility and indicated a mindset that continues to be heavily focused on the Accident as the cause of every problem or difficulty she has faced since. Once the Facebook entry was put to her, Ms. Neyman denied suffering any phobia to driving that involved driving very fast, late at night, and in the dark with a sore knee. I also found Ms. Neyman’s attitude towards defence counsel during the exchange to have been inappropriately condescending. I also found Ms. Neyman’s evidence to be at odds with her previous testimony that in 2011, two years after the Facebook posting, she was forced to purchase a vehicle with an automatic transmission because she found driving a car with a clutch aggravated her hip. That evidence is also inconsistent with her similar advice to Dr. van Rijn in 2010 that she found it difficult to drive a standard vehicle, “as using the clutch aggravates her back and hip pain.”
[128]     Many of the answers she gave in cross-examination about a number of her Facebook postings reflected a mindset to minimize physical and travel-related problems not related to the Accident, and to discount as overstated those Facebook postings that suggested she was, following the Accident, pursuing an over-burdensome schedule by working mostly full-time hours while attending school on a full-time basis.
[129]     I am, respectfully, unable to accept the submission made by her counsel that a number of Ms. Neyman’s postings on her Facebook that might reflect poorly on her credibility should be characterized as youthful boasting to her peers. Her comments on Facebook were made of her own volition. In my opinion, having observed Ms. Neyman in the witness box over the course of several days, I am satisfied that her Facebook comments accurately reflect her mindset when each posting was made.
[130]     In all, I found Ms. Neyman to be an unreliable historian in many respects. She is unduly focused on the Accident as the cause of all of her pain and difficulties with school and work. Accordingly, I find it difficult to place meaningful weight on much of her evidence concerning the nature and extent of her pain and suffering caused by the Accident and what happened to her on impact.

Court Turns to Wikipedia To Address Claimed Damages for Rolfing

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


Reasons for judgement were released this week with the BC Supreme Court citing Wikipedia when assessing damages following a motor vehicle collision.
In this week’s case (Parker v. Davies) the Plaintiff was injured in a 2009 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff sustained a disc protrusion in her back and was expected to have long term symptoms as a result of this.  The Court assessed non-pecuniary damages of $90,000.
In addition to this the Plaintiff claimed fairly substantial damages for future care costs including over $24,000 for rolfing.  Mr. Justice Meiklem rejected this claim finding there was no medical evidence to justify the expense.  Prior to doing so the Court took the interesting move of referencing Wikipedia and provided the following reasons:
[40]         I had never heard of Rolfing before this trial and there was no authoritative evidence presented about what Rolfing is, much less any medical evidence that it is medically necessary in Ms. Parker’s case. I note that Ms. Henry adopted Ms. Parker’s description of Rolfing as a form of deep tissue work. Ms. Parker credits it as the most beneficial treatment that she has undergone in relieving the pain that radiates to her leg. Ms. Henry suggested that consideration be given to funding the treatment based on her understanding that it helped Ms. Parker, but would defer to a physician as to the medical benefits.
[41]         My curiosity led me to Wikipedia.org, where the following description appears:
Rolfing is a therapy system created by the Rolf Institute of Structural Integration (also referred to as “RISI”), founded by Ida Pauline Rolf in 1971.The Institute states that Rolfing is a “holistic system of soft tissue manipulation and movement education that organize(s) the whole body in gravity”. Manipulation of the muscle fasciae is believed to yield therapeutic benefits, including that clients stand straighter, gain height and move better, through the correction of soft tissue fixations or dystonia. A review found that evidence for clinical effectiveness and hypothesized mechanisms of Rolfing is severely limited by small sample sizes and absence of control arms, and that further research is needed, though controlled trials found that a single Rolfing session significantly decreases standing pelvic tilt angle, and that Rolfing caused a lasting decrease in state anxiety when compared to the control group. Only practitioners certified by RISI can use the title “Rolfer,” or practice “Rolfing,” due to service mark ownership. The Guild for Structural Integration is the other certifying body, whose graduates use the title “Practitioners of the Rolf Method of Structural Integration.”
[42]         In researching previous decisions of this court, I found two cases where Rolfing treatments were funded as part of special damages awarded, without medical evidence of medical necessity: Price v. Abdul, unreported, Vancouver Registry No B922911, BCSC, January 12, 1994; Schubert v. Knorr, 2008 BCSC 939, and one case, Cryderman v. Giesbrecht and Giesbrecht, 2006 BCSC 798, where the court acknowledged Rolfing costs as part of future care costs on the basis that, although not prescribed by her doctors, the plaintiff said the treatment gave her relief and the court found that the amount ($140 annually out of total annual care costs of $1,060) did not seem excessive.
[43]         The plaintiff in Cryderman sought a total future care costs award of $10,000, but was awarded $4,000, so the amount of the award notionally attributable to future Rolfing treatments would be approximately $550. Of course, assessing future care costs is not a precise accounting exercise, and perhaps the court felt that the very modest cost claimed obviated the need for evidence of medical necessity in that case. However, by comparison, Ms. Parker’s claim is for an award that would include $24,934 as the present value of annual Rolfing costs in the amount of $1,020 for the rest of her life expectancy. In my view, this is not a case where the court should deviate from the established principle that the appropriate award for the cost of future care is an objective one based on medical evidence. Accordingly, I will not consider potential future Rolfing costs in my assessment.
While it is easy to understand the desire to inform oneself by referencing on-line material, the same privilege clearly does not extend to a Jury as evidenced by this 2009 development where the BC Supreme Court discharged a juror for satiating his curiosity by referencing Wikipedia in the course of a trial.

ICBC Expert Witness Rejected for "Facile and Argumentative" Testimony

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.

Adding to this ever growing database of case comments criticizing expert witnesses for advocacy, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, rejecting the evidence of an orthopaedic surgeon hired by ICBC and providing critical comments about his courtroom testimony.
In this week’s case (Devilliers v. McMurchy) the Plaintiff was involved in a 2008 collision.  She sustained “a significant back injury leading to significant pain that has become chronic and likely permanent“.  The Plaintiff was awarded non-pecuniary damages of $75,000.  In the course of trial the Defendant called an orthopaedic surgeon who minimized the connection between the plaintiff’s symptoms and the collision.  In rejecting this opinion Mr. Justice Saunders provided the following critical comments:
[34]         I am not persuaded by the alternative theories Dr. Grypma put forward. In attributing Ms. De Villiers’ continuing symptoms in part to deconditioning, Dr. Grypma completely overlooked Ms. De Villiers’ ongoing exercise routine, which has led to a 90-pound weight loss. He also gave no explanation as to how the relatively mild degenerative changes seen in the MRI study could account for Ms. De Villiers’ chronic pain and its resistance to the various treatments she has undertaken, without the accident having been a critical factor in the onset of her complaints. To accept his changed opinion, I would have to find that the emergence of symptoms of back pain in proximity to the accident was mere coincidence. I am not prepared to make that finding.
[35]         Furthermore, Dr. Grypma’s interpretation of Dr. Schuurman’s CL-19 report as only demonstrating a Grade I soft tissue injury overlooked the fact that Dr. Schuurman clearly found it to be a Grade II injury; the second page of the CL-19 form has a ticked box next to the description of a Grade II injury:
Neck/upper back
musculoskeletal signs:
·        decreased ROM
·        point tenderness.
Dr. Grypma initially maintained on cross-examination that a Grade II injury classification requires both decreased range of motion, and point tenderness. However, he conceded that the Québec Task Force Grade II classification uses point tenderness as a clinical sign, distinguishing this injury from a Grade I injury in which there are no clinical signs. Attempting to defend his position that this was not a Grade II injury, Dr. Grypma then asserted that Ms. De Villiers’ injury could be viewed as a “Grade 1.5”. There is no evidence of such a classification being recognized. I was not impressed by this testimony.
[36]         Dr. Grypma contended that as patients waiting for hip replacements usually have chronic pain over two to three years prior to having surgery, and the vast majority of these patients eventually recover, there is every reason to believe that Ms. De Villiers will also recover from her chronic low back pain. I found this analogy facile and argumentative. Dr. Grypma did not claim any expertise in the field of chronic pain treatment.
[37]         Overall I found Dr. Grypma’s evaluation of Ms. De Villiers to be ill-considered and superficial, and I give no weight to his evidence.

"Untruthful" Description of Collision Undermines Personal Injury Lawsuit

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

If an injured plaintiff inaccurately describes the forces of a collision to physicians that can work to undermine the foundation of subsequent medico-legal reports and strike at the foundation of a personal injury claim.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In this week’s case (Warren v. Morgan) the Plaintiff was involved in two collisions in 2008.  She sued for damages and proceeded to trial which took 22 days.  The Court found that the first collision caused “no damage” to the Plaintiff and dismissed the claim.  The second claim allegedly caused profound injury including long term problems stemming from both psychiatric and organic injuries.  The Court largely rejected the Plaintiff’s claim and dismissed most of the claimed damages.  In doing so Madam Justice Russell provided the following comments criticizing the Plaintiff’s evidence with respect the forces involved in the collision:
[476]     These findings do not determine the issue of causation. The law is well-established that causation and the extent of an injury will be decided on the whole of the evidence: Hoy v. Harvey, 2012 BCSC 1076 at paras. 44 – 45; Christoffersen v. Howarth, 2013 BCSC 144 at paras. 56 – 57. Even if the accident was minor, Ms. Warren may have suffered serious physical and psychological injury.
[477]     At the same time, Ms. Warren has put forward an untruthful version of the accident to her treating health care professionals, as evident in their description of the incident. For instance, Dr. Boyle’s report notes that she crashed into the car ahead of her as a result of Mr. Berretta’s vehicle hitting her from behind. This misstatement cannot be explained by the passage of time; it is a misrepresentation that affects the reliability of the medical evidence admitted in this case for the purpose of determining causation and damages…
[591]     On the evidence, I find the plaintiff has convinced herself that the accident occurred in a certain way and that she experienced certain symptoms. She has presented this story to her treating doctors who have relied upon the accuracy of her reported symptoms. These doctors have found support for their diagnoses in other medical reports, that similarly rely upon the accuracy of plaintiff’s reported symptoms. This evidence superficially seems reliable, but its foundation is fictitious.

The Duty of Lawyers to "Investigate" Litigants Social Media Use

Written by admin on . Posted in ICBC Privacy Issues.


It is well established that social media postings and other electronic ‘records’ can be relevant in injury litigation.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this and discussing litigant’s duties to canvass these documents in the course of litigation.
In  last week’s case (Ahadi v. Valdez) the Plaintiff was injured in a 2005 collision.  In the course of her trial an e-mail which was not previously disclosed was put to a witness. This led to a delay of the trial with further discovery taking place.   Madam Justice Adair provided the following comments addressing this development:
[154]     The defendants argue that Ms. Ahadi’s failure, prior to trial, to disclose all relevant electronic documents demonstrates a general lack of honesty on her part.  The problem relating to discovery of electronic documents was discovered on the third day of trial, when Mr. Marcoux showed e-mail communications to a witness (Ms. Betty Chow, Ms. Ahadi’s boss when she was working at Shoppers Drug Mart) that had not previously been disclosed to the defendants.  Mr. Marcoux acknowledged that he had received the e-mail communications from Ms. Ahadi shortly before the trial began.  An order was then made concerning production of electronic documents, and Ms. Ahadi was required to submit to further oral examination for discovery.  This turn of events was very unfortunate, and made an already stressful experience (the trial) even more so.  It was also completely avoidable, if only appropriate inquiries had been made by Ms. Ahadi’s solicitors prior to trial concerning the existence and location of relevant and producible electronic documents.  Court had to be adjourned early on the third day of trial, after the issues concerning Ms. Ahadi’s electronic documents had been uncovered and during Ms. Ahadi’s examination-in-chief, because Ms. Ahadi felt unable to continue in the circumstances.
[155]     The defendants argue that, because of the circumstances surrounding production by Ms. Ahadi of electronic documents and the conflicts in her evidence concerning the location of electronic documents in her home, I should give no weight to either Ms. Ahadi’s evidence at trial or her self-reports to the various experts.  The defendants say that anything less would be unjust to them.  They also argue that I should draw an adverse inference against Ms. Ahadi.
[156]     I do not agree. 
[157]     In my opinion, it does not follow from what happened concerning discovery by Ms. Ahadi of electronic documents that I should give no weight to her evidence generally.  Ms. Ahadi’s solicitors need to accept at least some of the responsibility for what occurred.  Prior to trial, they should have investigated the existence of relevant electronic documents much more thoroughly than they did.  Had they made a proper and thorough investigation, Ms. Ahadi’s solicitors could have avoided placing their client in the uncomfortable position in which she found herself on the third day of trial.  Defendants’ counsel also had the opportunity to pursue the matter of electronic documents (such as Facebook postings and e-mail), when Ms. Ahadi was examined for discovery some nine months before the trial, but they did not.  In my view, Ms. Ahadi’s evidence should be assessed looking at all of the relevant factors.  The court can accept some, all or none of the evidence of a witness.

Bus Driver Liable For Slip and Fall After Failing to Drop Passenger Off at Curb

Written by admin on . Posted in ICBC Liability (fault) Cases. 54 Comments on Bus Driver Liable For Slip and Fall After Failing to Drop Passenger Off at Curb


Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing the responsibility of transit operators to drop their passengers off at a safe location.
In last week’s case (Falconer v. BC Transit Corporation) the Plaintiff (who the judge and defence counsel described as “one of the most honest and direct people I have ever come across“) was a passenger on a bus in Kamloops, BC.  It was a winter day and the bus “was not brought to a stop at the bus stop where there was a curb“.   As a result, the Plaintiff  “had a greater distance to step down from the bus than if the bus had been brought to a halt right at the bus stop“.
The Plaintiff slipped on a skiff of snow and was injured.  In finding the bus drier 75% at fault for this incident Mr. Justice Abrioux provided the following reasons:
[44]         In my view, a prima facie case of negligence has been established by the plaintiff. Although Mr. Falconer may not have been able to say what caused him to fall, I have found it was the lower level, icy surface upon which he stepped off the bus due to where the bus driver chose to stop the bus.
[45]         The issue then becomes whether the defendant has presented evidence negating the prima facie case of negligence that has been established. In my view it has not. The reasons for this include:
·       it has led no evidence as to why the bus stopped where it did. Perhaps there was another bus which had pulled up at the stop sign in front of it, but there was no evidence to that effect;
·       it has led no evidence from which I could conclude that the location where the rear doors opened was a “reasonably safe place for [Mr. Falconer] to debark”. See: Grand Trunk Pacific Coast Steamship Co. v. Simpson;
·       viewed within the context of the “very high degree of care” required of a public carrier, the fact Mr. Falconer erroneously believed it was safe for him to debark cannot be interpreted to mean it was in fact reasonably safe for him to do so;
·       the defendant has led no evidence as to whether a warning to passengers was not required under the circumstances.
[46]         In my view, there was a “heightened need to adduce evidence in response, either to prevent the drawing of adverse inferences or to negate a prima facie case”. See: Parsons and Sons Transportation Ltd.
[47]         In addition, Mr. Rogers breached the standard of care expected of a bus driver by leaving the bus stop. An elderly passenger had slipped and fallen in the immediate vicinity of the rear door of the bus. The fact Mr. Rogers left the scene can only mean he did not perform the appropriate check in his right mirror. To quote Mr. Cameron, “I don’t see how a person can drive away in a bus without checking the right mirror to see that they are clear.… You could have a kid reaching in there for a ball under the tires or whatever”. Although this breach of the standard of care did not cause the plaintiff’s injury, it indicates to me a “general lack of care and inattention” by Mr. Rogers in so far as his responsibilities to passengers were concerned. See:  Donald v. Huntley Service Centre Ltd., (1987) 61 O.R. (2d) 257 (S.C.J.) at para. 9.