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$90,000 Non-Pecuniary Assessment for Thoracic Outlet Syndrome With Poor Prognosis

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Adding to this site’s archived posts of BC non-pecuniary damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury with a poor prognosis.
In last week’s case (Gillam v. Wiebe) the Plaintiff was involved in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff sustained various injuries including a Thoracic Outlet Syndrome with a poor prognosis for full recovery. In assessing non-pecuniary damages at $90,000 Mr. Justice Verhoeven provided the following reasons:
65]         In summary, I find that the plaintiff suffered the following injuries due to the accident:  chronic right sided neck and shoulder pain, thoracic outlet syndrome, and headaches, all as described above. She has also suffered from deterioration in her mood and disposition, interference with sleep, and significant weight gain.
[66]         Her headache condition is gradually improving but she continues to suffer from frequent headaches. Her neck and shoulder pain and her TOS symptoms also continue to cause pain and limitation of function. In general, the prognosis for the plaintiff’s conditions is poor. It is likely that she will have a degree of limitation of function and pain permanently…
[85]         Some context is also provided by the video surveillance evidence. Video surveillance was conducted on 3 separate days in April and May, 2012. The video evidence shows the plaintiff carrying out ordinary activities such as pumping gas, entering and exiting her vehicle, driving, and also shopping and eating a picnic lunch with companions. She displays no obvious sign of discomfort or disability and generally looks comfortable and able to carry out such moderate activities.
[86]         Nevertheless, the plaintiff suffers from a limitation of function. She suffers from pain in her neck and shoulder which will likely never completely disappear. She is unlikely ever to be symptom free in relation to her TOS condition. She continues to suffer from frequent headaches for which the prognosis is negative for complete resolution. She is no longer capable of heavy work, and must avoid other activities that could aggravate her neck and shoulder injuries and her TOS. She is restricted in terms of employment, domestic and recreational activities. There has been a very significant change in the plaintiff’s overall lifestyle. There have been emotional consequences to her injuries. Her injuries have also made caring for her daughter much more difficult.
[87]         While of course each case is unique, other court cases provide useful guidance with respect to the proper quantum of the award. Consistency with other decisions of the courts is desirable. The award must be fair to both sides.
[88]         The plaintiff relied upon: Stapley v. Hejslet, 2006 BCCA 34 ($175,000); Hooper v. Nair, 2009 BCSC 862 ($104,500); Cimino v. Kwit, 2009 BCSC 912 ($85,000); Milliken v. Rowe, 2011 BCSC 1458 ($85,000); and Durand v. Bolt, 2007 BCSC 480 ($75,000). The plaintiff submits that the range for non-pecuniary damages in this case is $95,000 to $135,000. The defence also relies upon Cimino, and Durand. Additionally, the defence cites Driscoll v. Desharnais, 2009 BCSC 306 ($55,000), Langley v. Heppner, 2011 BCSC 179 ($55,000), and Verhnjak v. Papa, 2005 BCSC 1129 ($40,000). The defence submits thatDriscoll and Langley most closely equate to this case, and submits that an appropriate award is $60,000.
[89]         Having reviewed these authorities, in my view an appropriate award for non-pecuniary loss in this case is $90,000.

ICBC Application To Withdraw Liability Admission Denied

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized.

Rule 7-7(5) allows a party to withdraw a formal admission by consent or with permission of the Court.  When it comes to an admission of liability obtaining the Court’s permission can be an uphill battle as was demonstrated in reasons for judgement released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Miller v. Norris) the Defendant had a heart attack while driving a vehicle   He struck a traffic pole which was launched into the Plaintiff’s vehicle causing injury.  ICBC initially looked at the liability situation and placed the Defendant at fault.  After the lawsuit started liability was formally admitted in the pleadings.  As the lawsuit progressed the Defence lawyer wished to deny liability raising the ‘inevitable accident’ defence.  The Court refused to allow this noting the admission was not made hastily and no new evidence existed justifying the changed pleadings at this stage of the litigation.  In dismissing the application Master Bouck provided the following reasons:
[35]         The admission of liability (or more accurately, the rejection of the inevitable accident defence), was not made hastily, inadvertently or without knowledge of the facts. As noted, the individual adjusters involved in these claims are experienced in such matters and clearly put some thought towards the inevitable accident defence.
[36]         The question of liability is one of mixed fact and law. However, it may not be said that the fact admitted is false.
[37]         In terms of delay, the ICBC internal review of liability was initiated in the summer of 2011. For unexplained reasons, an independent adjuster was not retained for some seven months. The independent adjuster was in contact with the adjuster prior to be pleadings being closed and reported to ICBC in July 2012, yet there was no change in the instructions on liability for several more months and then only as a result of defence counsel’s initiative.
[38]         The only so-called “new” evidence is the production of Mr. Norris’ pre-accident health records. These records were obtained by the independent adjuster and provided to ICBC in July 2012. The records could have been obtained much earlier in this process; instead, the adjusters chose to rely on the information obtained from Mr. Norris’ doctor’s office. Most importantly, no new instructions were provided to defence counsel upon receipt of this information.
[39]         The plaintiff has incurred expense and proceeded with this lawsuit based on the admission of liability. Defence counsel submits that an award of costs can alleviate any prejudice suffered by the plaintiff in that regard. Even if I were to award the plaintiff costs and disbursements “thrown away” to date, the withdrawal of the admission and the plea of inevitable accident leaves the plaintiff exposed to the defendant’s costs. Furthermore, I am unable to characterize the pain clinic expense as a disbursement under Rule 14-1(5) of the Supreme Court Civil Rules. Rather, that expense is more accurately described as an item of special damages which would not be covered by any costs award.
[40]         This case bears some resemblance to the circumstances discussed in Rohling (Guardian ad litem of) v. Proudman, [1998] B.C.J. No. 1383 (S.C. Master). In that case, the defence sought to withdraw an admission of liability in order to plead inevitable accident (based on the recommendation of counsel). At para. 20, the court states:
I am not satisfied that it is in the interests of justice to allow the withdrawal of the admission simply because Mr. MacLeod takes a different view of the facts than taken by the adjuster and independent adjuster when the matter was originally considered shortly after the accident.
[41]         A similar analysis of this question is given in Oostendorp v. Sarai, [1973] B.C.J. No. 570 at para. 10:
It would be wrong to encourage a practice that enabled parties to admit liability one day and withdraw the admission later on the basis of a different view taken of the same facts by some other person.
[42]         I would add that here, multiple adjusters took the view that liability ought to be admitted. Furthermore, even though the relevant witnesses with respect to the inevitable accident defence are known to the parties, the passage of time may have affected these witnesses’ memories: Rohling (Guardian ad litem of) v. Proudman at para. 19.
[43]         In the result, I find that the application ought to be dismissed, with costs to the plaintiff.

LVI Defence, Liability Denial and Language Barriers Create Sufficient Reason to Sue in Supreme Court

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

While the BC Supreme Court Rules generally deprive a Plaintiff of costs who bring an action to trial that could have been brought in small claims court the BC Court of Appeal clarified that having ‘sufficient reason’ to sue in the BC Supreme Court is not limited to quantum of damages alone.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering some such other factors.
In this week’s case (Bae v. Vasquez) the Plaintiff was injured in a 2010 rear-end collision.  The Plaintiff suffered relatively minor soft tissue injuries.  She sued in the BC Supreme Court and was awarded damages of just over $12,000.  ICBC argued she should not be awarded costs as the action could have been brought in small claims court.  Madam Justice Baker disagreed finding that ICBC’s initial denial of liability, LVI Defence and the Plaintiff’s language barriers were all reasons justifying bringing the action in the Supreme Court.  In awarding costs the Court provided the following reasons:
[69]         I am satisfied that this case had neither legal nor factual complexities that made the Supreme Court a necessary venue.  I have already referred to the fact that a jury trial was not an option in any case; and there will be no need to enforce the judgment outside of the province.
[70]         In some cases, the fact that the plaintiff had difficulty with the English language; and therefore would have difficulty pursuing the claim without the assistance of counsel, has been held to be sufficient reason to proceed in Supreme Court, where the possibility of recovering costs makes it easier for a plaintiff to find counsel willing to act.
[71]         Plaintiff’s counsel submits also that in this case, the defendant denied liability for the accident in the Response to Civil Claim.  Plaintiff’s counsel has advised the Court that prior to the action being commenced, the defendant’s insurer had indicated:
…that due to the “minimal nature of the impact forces involved in the collision”…the Plaintiff had not sustained any “compensable injury”.
[72]         The defendant did not admit liability until January 30, 2012 and even at that date, continued to maintain that the plaintiff had suffered no injury, loss, damage or expense as a result of the accident.
[73]         Plaintiff’s counsel submits that because the defendant was maintaining that the plaintiff’s negligence was the sole cause of the accident, an examination for discovery of the defendant was necessary and that procedure would not have been available to the plaintiff in Provincial Court.  Counsel pointed out that at the plaintiff’s examination for discovery in July 2011, she was asked questions pertaining to liability, including whether she had consumed alcohol or drugs prior to the accident; whether she was familiar with the location where the accident happened; whether her vehicle had been properly maintained and was in proper working order and whether she had a valid driver’s licence at the time.
[74]         It was not until August 18, 2011 – after both the plaintiff and defendant had been examined for discovery – that defendant’s counsel wrote to plaintiff’s counsel suggesting that the action should be heard in Provincial Court and seeking the plaintiff’s consent to transfer the action to that court.  Plaintiff’s counsel replied on September 21, 2011 indicating that if the trial could be heard in Provincial Court in the same time frame as the trial date set in Supreme Court – March 2012 – then the plaintiff would consider the request for a transfer.  Defendant’s counsel was asked to make inquiries to determine when the trial could be heard if transferred to Provincial Court.  No reply was received.
[75]         Ms. Bae testified at trial with the assistance of an interpreter.  She had been examined for discovery without an interpreter and at trial indicated she had misunderstood some of the questions asked of her.  Ms. Bae is not an assertive individual and I am satisfied she would have had considerable difficulty pursuing this action without the assistance of counsel.  Of course, parties may be and often are represented by counsel in Provincial Court, but the unavailability of costs makes it more difficult to find representation.  There was a denial of liability in circumstances where normally liability would be admitted and it was reasonable for the plaintiff to wish to examine the defendant for discovery on the issue of liability – a procedure unavailable in Provincial Court.
[76]         Taking all of these factors into account, I am of the view that there was sufficient reason for the plaintiff to bring her action in Supreme Court.  I award the plaintiff costs, the costs to be governed by Rule 15-1(15).

$85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

Written by admin on . Posted in ICBC Femur Injury Cases. 50 Comments on $85,000 Non-Pecuniary Assessment For Fractured Femur With Permanent Partial Restrictions

It is rare to find caselaw dealing with damages for a femur fracture alone as the forces required to break the body’s biggest bone usually also result in other complex injuries.  Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, dealing with such an injury without significant complication from other factors.
In this week’s case (Gravelle v. Seargeant) the Plaintiff pedestrian was struck by the Defendant’s vehicle while he was walking on the shoulder of a road.  The impact threw the plaintiff between and 30 feet.  He suffered a fractured right femur which required surgical interventions.  Despite a relatively good recovery he was expected to have some permanent level of restriction due to his injury.  In assessing non-pecuniary damages at $85,000 Mr. Justice Kelleher provided the following reasons:
[50]         The following is the application of these factors to the plaintiff:
(a)      Age of the plaintiff: 
Mr. Gravelle was 16 when the accident happened.  The evidence establishes that he will likely suffer some measure of pain for the rest of his life.
(b)      Nature of the injury:
Mr. Gravelle suffered a fractured right femur that required an open reduction and insertion of an intramedullary nail and locking screws.  He also suffered injuries to his low back, right groin and right knee, which remain a cause of pain.
(c)      Severity and duration of pain:
He was in severe pain for a short period of time.  He was required to take pain medication for 4 – 6 months.  Four and a half years after the accident he continues to suffer pain.
(d)      Disability:
The plaintiff was totally disabled for some six months, and continues to have some measure of disability.
(e)      Emotional suffering:
The plaintiff’s mother testified that the plaintiff was isolated and less confident following the first collision.  He did not seek counselling for this.
(f)       Loss and impairment of life:
Mr. Gravelle’s life was interrupted and altered by the first collision.  He missed part of Grade 10.  His mobility was significantly restricted during the summer.  He has permanent injuries and has some impairment of his ability to perform physical labour and enjoy his former physical pursuits.
(g)      Impairment of family, marital and social relationships:
Mr. Gravelle does not enjoy spending a lot of time with friends.  He was somewhat like this before the accident as well.
(h)      Impairment of physical and mental abilities:
He has a permanent impairment of his physical capabilities.  There is no impairment of his mental abilities.
(i)       Loss of Lifestyle:
Mr. Gravelle was unable to engage in snowboarding, an important part of his life, for some time.  He has been able to return to it, but pain prevents him from snowboarding in the same manner as before.
(j)       Stoicism:
Mr. Gravelle is somewhat stoic in his presentation.  The defendant agrees that the plaintiff should not be penalized for this…
53]         Having considered the plaintiff’s injuries and the factors listed above, in light of the case law, I assess non-pecuniary damages at $85,000.

PAU Strips Ontario Insurer of Defense for Payment of BC No Fault Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

As previously discussed, BC’s Financial Institutions Act requires out of Province vehicle insurers to sign a “Power of Attorney Undertaking” in essence promising to provide the minimum insurance coverage available in BC when their insured vehicles are travelling in this Province and further not to raise any defences which are not available to BC insurers.  As many North American jurisdictions have insurance limits well below those required in BC this often creates excess exposure for foreign insurers.  Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, stripping a PAU signatory of a defence they otherwise would be entitled to.
In the recent case (McCord v. Insurance Corporation of British Columbia) the Plaintiff was injured as a pedestrian in a BC collision.  He was insured for no-fault benefits both with ICBC  and a private insurer from Ontario.  He received benefits from ICBC and subsequently sought coverage with the Ontario provider.  The Ontario insurer denied payment relying on an Ontario regulation which limited payments “if the person receives benefits under the law of the jurisdiction in which the accident occurred“.
The Plaintiff sued arguing the Ontario insurer could not rely on this section as they signed the PAU.   Mr. Justice Saunders agreed and provided the following reasons:
[9]             Western Assurance says that there has been no violation on its part of the PAU; it has not set up a defence as to coverage, but has simply taken a position as to the amount of coverage available….
[10]         The PAU sets out two provisions. One is an undertaking not to raise defences. The other is an undertaking to pay limits as set out in (a) and (b) of the PAU. A “position” taken by a foreign insurer that only the minimum amount is payable, and not the full amounts otherwise payable under the foreign insurer’s policy, is, in every sense of the word, a defence. The position being taken here by Western Assurance is one of the types of conduct which the PAU is designed to prevent…
[12]         In my view, the raising of the provisions of the Regulation by Western Assurance is a defence within the meaning of the PAU, and reliance on those provisions as a defence would constitute a breach of the undertaking under the PAU.
[13]         The application is therefore allowed, and s. 57(1.1) of the Regulation will have no application to Mr. McCord’s claim for benefits.
 

Court Finds ICBC's "Claim Payment Proposal" Extends Limitation Period

Written by admin on . Posted in Uncategorized. 61 Comments on Court Finds ICBC's "Claim Payment Proposal" Extends Limitation Period


When you can’t agree with ICBC as to the value of your claim they sometimes provide a “Claim Payment Proposal” which, unlike a conventional settlement, does not resolve a claim but leaves the door open to litigation.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, considering the effect of such a proposal on a limitation period.
In this week’s case (Coombs v. LeBlond Estate) the Plaintiff was injured in a 2008 collision.  The Plaintiff and ICBC could not agree on the value of the claim and ICBC provided a Claim Payment Proposal.  The Plaintiff eventually sued for damages but did so after the expiry of his limitation period. ICBC applied  to dismiss the lawsuit on this basis.  The Plaintiff argued that the Claim Payment Proposal, despite being marked ‘without prejudice‘ was an admissible confirmation of the cause of action extending the limitation period.  Mr. Justice Betton agreed and dismissed ICBC’s application.  In doing so the Court provided the following reasons:
[23]         The act of marking a document with the clause “without prejudice” alone is insufficient to determine whether a document is privileged. Rather, the two conditions stated in Belanger must be present for a “without prejudice” letter to be privileged. There must be:
(a)      a dispute or negotiation between two or more parties, and;
(b)      terms of settlement offered.
[24]         There is no issue with condition (a) in the present case. The privilege issue turns on whether terms of settlement were offered by ICBC in their letter.
[25]         In my view, neither the letter of December 8, 2008 nor the attached claim payment proposal contain such terms. The defendants stress that there are terms attached, but they are not, in my view, terms of settlement.
[26]         In Rogic the first letter attaching the full and final release clearly communicated that the terms of settlement would be payment of $5,000 in exchange for a full and final release. If that release was signed, the action was concluded; accordingly, the letter was not admissible.
[27]         The second letter, as was noted in paragraph 32, did not contain any such terms and was admissible; however, it did not constitute a confirmation of a cause of action.
[28]         The defendants also cite Strassegger v. Harrison Hot Springs Resort Hotel Ltd., [1999] B.C.J. No. 1878 (S.C.) in support of their position. I find this case is not helpful to the defendants’ cause. Strasseggerwas decided on the ground that the correspondence could not be relied upon as confirmation of the action, not whether the document was privileged: see paragraph 11.
[29]         Here the effect of the letter, the cheque, and the claim payment proposal is to confirm the cause of action. It also informs the plaintiff as to ICBC’s view that the money represents a reasonable offer of settlement. It does not, however, impose any terms for the settlement of the action. It provides only that there be an acknowledgement of the receipt of the monies and that they would be deducted from any future recovery.
[30]         In my view, even if the plaintiff had executed the claim payment proposal, the terms contained in it are not the sort of terms contemplated by the Court of Appeal in Belanger or this court in Rogic as being terms of settlement of the dispute or negotiation.
[31]         Accordingly, the application of the defendants is dismissed.

$95,000 Non-Pecuniary Assessment For Chronic L4/5 Disc Herniation With Liklihood of Surgery

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

Adding to this site’s archived cases addressing non-pecuniary damages for spine injury cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a low back disc injury.
In this week’s case (Muhammedi v. Ogloff) the Plaintiff was involved in a 2009 rear-end collision.  Liability was admitted.  The Plaintiff suffered various soft tissue injuries and also an L4/5 lateral disc herniation.

This injury remained symptomatic at the time of trial and there was a greater than 50% chance that the injury would eventually require surgical intervention.  In assessing non-pecuniary damages at $95,000 the Court provided the following reasons:
[88]         Dr. Kokan was of the opinion that, from the accident, she had right side L4/5 far lateral disc herniation and persistent cervical myofascial pain.  He concluded:  “The motor vehicle [accident] as described, in my opinion, is most responsible for the onset of symptoms.”  While this aspect of his report was not clarified, it was clear from his testimony that the cause of her injuries was the car accident.
[89]         He felt her prognosis to be uncertain, and stated as follows:
Generally, I expect at least the current level of symptoms.  Far lateral disc herniations are typically more problematic with respect to symptoms.  Usually they can produce significant nerve root compromise given that they are located lateral to the foramen and pedicles, thereby there is less room for the exiting nerve root, thereby physical compression and symptoms are common.
I would expect usually that Mrs. Muhammedi would have at least the current level of symptoms in her back and that she would experience aggravations brought on in proportion to future activities.  Heavier activities would go on to produce potentially more troubling symptoms.
In the event that she should have ongoing and disabling neurological symptoms, she would probably have to consider surgical treatment.  The orthopaedic literature varies with respect to the need for surgery.  The possibility that she could require surgical treatment in the future is probably greater than 50%.  I say this because of her relatively young age and the associated presence of this type of disc protrusion…
[117]     The physicians all agree, and there is no issue in this regard, that the plaintiff sustained a far lateral disc protrusion.  All similarly agreed that the cause of the disc protrusion was the accident….
[157]     I find that it is clear from the expert reports tendered and the plaintiff’s evidence that she continues to sustain ongoing problems from this accident.  I find that this brings this case beyond the nature of the type of injuries in the cases cited by the defendants. It is more severe, more akin to the plaintiffs’ injuries in the cases cited by the plaintiff.
[158]     In all the circumstances, I award Ms. Muhammedi $95,000 for her non-pecuniary damages.  This recognizes the ongoing difficulties that she has and the possibility, which was deemed by the physicians, indeed by Dr. Kokan to be greater than 50%, that the plaintiff will require surgery at some time in the future.

Defendant Seeks To Exclude Plantiff From His Own Trial

Written by admin on . Posted in Civil Procedure. 107 Comments on Defendant Seeks To Exclude Plantiff From His Own Trial

Short but interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defence application to remove a plaintiff involved in a personal injury trial from the court room while an expert witness testified.
In today’s case (Danielsen v Johnson) the Plaintiff’s cross-examination was being interrupted to accommodate an expert witness who was scheduled to testify.  The Defendant argued the Plaintiff should be excluded from the courtroom.  Mr. Justice Silverman disagreed and finding the Plaintiff could watch the expert testify and at best this may effect weight of the Plaintiff’s testimony.  The Court provided the following reasons:
[2]             There is case law that deals with the question of when parties to the proceedings should be excluded, and the leading case seems to be a 1951 case from our court of appeal, Sisson v. Olson, [1951] 1 W.W.R. (N.S.) 507, where the court says this at para. 6 of the judgment of Judge O’Halloran:
But in my judgment, a party to an action (if not dismissed therefrom) cannot escape remaining a party while the action is in progress.  It would be plainly unreasonable to attempt, not to say impossible to accomplish, to deprive him of that status at any stage of the proceedings in the action.  It must follow, in my judgment, that appellants have as much right to attend each other’s discovery examination as they have to remain in court and listen to each other’s testimony at the trial itself.
[3]             And at para. 7:
Acceptance of this conclusion does not deny jurisdiction in the court at the trial or in the presiding judicial official at any stage of the proceedings to order the physical exclusion of a party, should a violation of an essential of justice occur or be threatened, if exclusion is not directed.  What may constitute such a violation depends on the situation in each case appraised in its own atmosphere, see Bird v. Vieth (1899) 7 B.C.R. 31. 
[4]             The defence here argues that we have the situation where there is a threatened violation of an essential of justice.  What makes the case at bar different from any of the other cases which I have been referred to is three-fold:  one, this is a trial, while the precedents with which I was provided (including Sisson) dealt with an examination for discovery; second, the plaintiff is in the midst of cross-examination; and third, defence counsel has agreed to accommodate plaintiff’s counsel and, more importantly, a medical witness, by standing down the cross-examination.  If he had not agreed to that it could be that the application would be on the other foot and there would be an application to stand down the witness.
[5]             Those are important considerations, I agree, but in my view they are not enough to remove the heavy onus which is on the applicant to have the plaintiff excluded, and I rely on the principle as set out in Sissonthat parties get to be in the courtroom except in situations where an essential of justice is threatened.
[6]             Consequently, the application is dismissed.  The plaintiff may remain in the courtroom.
[7]             I would add that it remains open for the defendant to argue that the plaintiff’s evidence has in some way been affected by his presence in the courtroom, in a tangible way, while other evidence has been heard, and that this should be taken into account when assessing his evidence or aspects of it.

Consolidation of Trials Not Appropriate With Multiple Quantum of Damage Assessments

Written by admin on . Posted in BCSC Civil Rule 22, Uncategorized.

Although the BC Supreme Court has discretion to consolidate different claims for trial in cases where competing claims are “so interwoven as to make separate trials at different times before different judges undesirable” this is a discretion rarely exercised when there are separate plaintiffs with distinct injury claims that require individual quantification.  This reality was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (MacMillan v. Shannon) 4 occupants of a vehicle were involved in a collision with another vehicle   All sued for damages in separate claims.  Liability and damages were disputed in all claims.  ICBC brought an application seeking to have all trials heard together.  This application was dismissed with the key factor in derailing the application being the individual quantum claims being advanced.  In addressing this point Master Caldwell provided the following reasons:
[8]             Finally, other than on the issue of liability, no one is arguing that there will be a significant or any saving on the presentation of expert evidence. Each of the plaintiffs has a different family doctor. Two of the plaintiffs now live in Quebec so if there is any further expert evidence it is unlikely to overlap and may have to be provided by way of teleconferencing to minimize expense. Again, it is clear that there are ways of reducing complexity, duplication and inconvenience; it will be up to counsel to determine whether that happens or not.
[9]             In short, I am of the view that none of the second arm of tests arising in the Merritt case (supra) or the subsequent case of Bhinder v. 470248 B.C. Ltd., 2007 BCSC 805 is met in the present cases. The application for consolidation and related relief is dismissed as is the application for removal of any or all of the actions from Rule 15-1 fast track.

Is An Expert Report Admissible If Your Expert Dies Before Trial?

Written by admin on . Posted in BCSC Civil Rule 11. 118 Comments on Is An Expert Report Admissible If Your Expert Dies Before Trial?

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, dealing with this issue.  In short the Court held that certain factual observations contained in the report were admissible as they met the ‘necessary and reliable‘ exceptions to the hearsay rule.  The opinion evidence, however, was excluded.
In today’s case (Andrews v. Mainster) the Plaintiff had cognitive limitations and these were tested by a neurupsychologiest one year following the collision.  The expert died before trial.  In admitting the factual portions of the report but excluding the opinion evidence Mr. Justice Pearlman provided the following reasons:
[25]         I return now to Dr. Kay’s report.  Dr. Kay’s report provides the only evidence of a comprehensive neuropsychological evaluation of the plaintiff’s cognitive functioning one year post accident.  The necessity requirement is met with respect to those portions of Dr. Kay’s report that deal with his testing and evaluation of the plaintiff’s level of cognitive functioning.  I also find that those parts of Dr. Kay’s report that record the history he took from Ms. Andrews, discuss the tests he administered and set out his opinions on the results of his testing of the plaintiff’s cognitive functioning meet the threshold of reliability required for their admission into evidence.  Dr. Kay was a neuropsychologist trained and experienced in the use of the standardized tests he administered to the plaintiff.  Those tests provide a largely objective measure of the plaintiff’s cognitive functioning.  These factors, combined with Dr. Kay’s certification of the duties he owed to the court as an expert provide sufficient circumstantial guarantees of the trustworthiness of this evidence to satisfy threshold reliability.
[26]         Different considerations apply respecting Dr. Kay’s opinion or diagnosis of post-traumatic stress disorder, his prognosis, and his opinion on the motor vehicle accident as a cause of the plaintiff’s emotional and psychological disorders.  Those opinions have a significant subjective component.  They are not predicated upon the objective results of his testing of the plaintiff’s cognitive capacity.  The nature, extent and sources of the plaintiff’s psychological difficulties both before and after the motor vehicle accident are all in issue in this litigation.  There is also a live issue about whether the plaintiff fully disclosed relevant information concerning her psychological condition and the various stressors that affected her from time to time to the counsellors, psychologists and psychiatrists who have treated or examined her.
[27]         Defence counsel requested production of Dr. Kay’s file, including his interview notes, in order to determine whether it might shed any additional light on the plaintiff’s complex psychological history.  The file has not been produced and apparently is not available.  Dr. Kay’s report also refers to a diary kept by the plaintiff following the motor vehicle accident, which has not been produced, and to the plaintiff having seen Ms. Tracy Good for counselling for family and relationship issues for 11 years.  Ms. Good informed counsel that she has shredded all of her records.  If true, that effectively precludes exploration of a potentially valuable source of information concerning the causes of the plaintiff’s emotional and psychological disorders before and after the motor vehicle accident. 
[28]         In light of the subjective nature of the evidence concerning the causes and nature of the plaintiff’s emotional and psychological disorders, and the gaps in the documentary record that I have discussed briefly, I am not satisfied that Dr. Kay’s professional training as a psychologist and the certifications contained in his report provide an adequate guarantee of the trustworthiness of his opinions on these matters to meet the threshold of reliability for their admission into evidence.  In the circumstances of this case, there is no adequate substitute for cross-examination of the expert.
[29]         Further, the test of necessity is not met for Dr. Kay’s diagnosis of and prognosis for the plaintiff’s emotional and psychological disorders.  Relevant direct evidence is available from another source.  The plaintiff has a comprehensive opinion from Dr. O’Shaughnessy on the nature and causes of the plaintiff’s disorders, their relationship to the motor vehicle accident and their treatment.
[30]         Accordingly, I conclude that those portions of Dr. Kay’s report beginning at page 20 under the heading “Psychological Explanations” and continuing with the prognosis, opinion and recommendations at pages 21 through 23 do not satisfy the tests of necessity and reliability and are therefore inadmissible.  The balance of Dr. Kay’s report, with those redactions, will be admitted into evidence.