Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that lost ‘fringe benefits’ are recoverable as part of a diminished earning capacity analysis.
In last week’s case (Combs v. Bergen) the Plaintiff was injured in a 2009 collision. She missed several months from work causing a past loss of income of just over $18,000. During her time off work she lost the benefit of employer contributions to her Canada Pension Plan and to her pension. She sought recovery of these losses. Mr. Justice Steeves agreed these were compensable and provided the following reasons: [61] The plaintiff seeks past income loss in the amount of $18,287.25 and the defendant agrees with this amount. However, the plaintiff also seeks payment for her employer’s contributions to the Canada Pension Plan (CPP) and s to her pension. These amounts are $831.05 and $1,737.29, respectively. The defendant opposes any payment for these amounts. [62] There is authority for the plaintiff’s submission on benefits to the effect that “the compensatory principle requires that the full value of lost fringe benefits must be taken into account when computing loss of working capacity” (Ken Cooper-Stephenson, Personal Injury Damages in Canada, 2nd ed. (Toronto: Carswell, 1996) at 240). This reasoning was adopted by the Newfoundland Court of Appeal in Taylor v. Hogan (1998), 160 Nfld. & P.E.I.R. 93 at para. 41 (Nfld. C.A.). I conclude that is appropriate in this case. [63] Past income loss is set at $18,287.25 plus CPP and pension contributions. Total is $20,855.59.
As readers of this blog know, I often extract one point of interest when creating case summaries and when more than one point is noteworthy I create multiple point specific posts. I do this because it makes it easier to search archived posts by case specific topics.
Reasons for judgement were released this week with so many nuggets it would be too burdensome to address them each individually so please excuse the multi point summary. In short this judgement showcases video surveillance successfully attacking a claim, credibility findings, comments on self-serving medical appointments, claimed care costs for medical marijuana and other points of interest. The entire judgement is worth a read.
In this week’s case (Datoc v. Raj) the Plaintiff was involved in an intersection t-bone collision. Both motorists claimed they had a green light which simply could not be true. The Court found that despite credibility problems with the Plaintiff his account of the collision appeared more reliable and the Defendant was found fully at fault. The Plaintiff claimed damages of over $450,000. The Court rejected most of these claimed damages and in doing so illustrated the following points: Video Surveillance Successfully Used
Video evidence was presented which documented inconsistent presentations of the Plaintiff in court versus out of court. Mr. Justice Sigurdson provided the following comments in finding the plaintiff was “significantly exaggerating” his claims: [103] I was shown video surveillance evidence of the plaintiff taken over a number of days in the months shortly before the trial. These videos showed the plaintiff getting in and out of his car, driving his car and taking photographs as a real estate photographer. This included squatting, and holding a tripod above his head to take pictures. He moved fluidly, in and out of the driver’s seat, apparently without discomfort. He and his counsel acknowledge a dramatic difference between his presentation on the video and his presentation in court. The plaintiff explains the difference by saying that he is capable of doing what he does on the surveillance video only because of medical marijuana he takes in the morning and at the end of the day. However, the plaintiff introduced no medical expert report to support this contention, only his evidence that this was the effect on him of his taking medical marijuana. I did not find persuasive his evidence that marijuana would have the dramatic and persisting effect that he asserts. The video surveillance showed him during different times of the day, not simply in the morning (shortly after he would have ingested a marijuana cookie), but into the afternoon as well, and his condition appeared to be no different no matter what the time of day. [104] Generally, surveillance evidence can be relatively unhelpful to assess the condition of plaintiffs as to whether they are performing activities without pain, or whether their ability to perform activities is because of use of pain medication, or stoicism, or other factors. However, the difference in this case between the manner in which the plaintiff presented himself in court and how he was shown on the surveillance video was dramatic. I did not find the plaintiff’s explanation persuasive that the dramatic difference was from his taking marijuana while working, and not taking it while in court… [106] I have concluded, based on a consideration of all of the evidence, that the plaintiff is significantly exaggerating the extent of his injuries. Medical Marijuana
The Plaintiff claimed damages of $20,000 for the cost of medical marijuana. While damages for medical marijuana are not unprecedented in British Columbia, a common analysis involves a plaintiff’s recreational interest in marijuana. The defendant pursued such an analysis with apparent success. In rejecting these claimed damages the Court provided the following analysis: [60] On cross-examination, the plaintiff was asked about his posting on the internet under the name Nismo200sx in light of his comment that he had only taken marijuana once or twice before. Although those postings suggested an interest in marijuana beyond simply as a treatment for his back pain, the plaintiff denied any recreational interest in marijuana… [112] The plaintiff said that prior to his prescription for medical marijuana, he tried marijuana once or twice, but he did not care for it. However, there is evidence to suggest the plaintiff’s interest in marijuana is more than purely for medical treatment purposes. His internet postings suggest that. Given my concerns about the reliability of the plaintiff’s evidence, and in the absence of expert evidence, I am not persuaded that medical marijuana is required by the plaintiff to treat his injuries… [120] The plaintiff seeks future care costs for medical marijuana of $200 per month or $2,400 a year for a suggested award of $20,000. The evidence does not support the claim that medical marijuana is reasonably necessary: see Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). As such, I award nothing for the cost of future care. Frequency of Doctor Visits
The last point of interest deals with the Plaintiff’s frequency of doctor’s visits I have canvassed this topic previously. In this week’s case the Plaintiff pointed to having 128 doctor visits as supporting his claim for injury. The Court, however, found that there was no reasonable justification for this and instead came to the conclusion that the Plaintiff was simply papering his claim. The following observation was made by Justice Sigurdson: [65] Up to June 2012, the plaintiff saw Dr. Irene Chan, a general practitioner, 128 times for his injuries. From July 8, 2008 to June 2012, the complaints he made to her were virtually the same on each occasion. Dr. Chen was not called as an expert witness but testified simply with respect to some of the observations she made… [107] It is difficult to know what to make of the fact that the plaintiff attended his general practitioner for 128 visits and appears to have repeated his symptoms almost without change on each visit. He explained in his testimony that he went to his doctor to report changes in his condition; however his doctor noted each of his attendances with the plaintiff reporting no changes. The evidence left me with the impression that the plaintiff was creating a record of his injuries for his claim as there appears to be no reasonable medical justification for the number of attendances before his family doctor. Rather than supporting his credibility, this evidence of the numerous attendances on his family doctor left me with the opposite impression.
I have previously discussed the fact that accelerated vehicle depreciation is a recognized damage in BC. Reasons for judgement were released this week by the BC Court of Appeal addressing such a claim noting something more than hearsay is required to prove the loss.
In this week’s case (Kapelus v. Hu) the Plaintiff was injured in a 2006 collision. She proceeded to trial and was awarded damages for her injuries but her claim for accelerated vehicle depreciation was dismissed. The Plaintiff presented evidence of offers that others provided her for the purchase of the vehicle. The Court of Appeal noted that if this was the only evidence then there was no error in dismissing this aspect of her claim. The Court provided the following reasons: 24] Finally, I should say that the argument advanced by Mrs. Kapelus, that the judge erred in rejecting evidence of the loss in value of her vehicle, based solely on her report of offers to purchase the vehicle, is without merit. The judge ruled that Mrs. Kapelus’ evidence, that third parties had been prepared to purchase her car at a certain price prior to the accident, was hearsay. I accept this ruling: it is hearsay and it is not rendered admissible under the business records exception in the Evidence Act, R.S.B.C. 1996, c. 124.
Adding to this site’s archived cases discussing fault for pedestrian collisions, reasons for judgement were released recently addressing contributory negligence of a pedestrian struck in a marked crosswalk.
In the recent case (Bulatovic v. Siebert) the Plaintiff was struck while crossing Granville Avenue in Vancouver. She had passed the midway point of the street when struck by the Defendant who was making a left hand turn.
Although there was contradictory evidence about the circumstances of the crash the Court ultimately found that the Plaintiff lawfully entered the crosswalk with a walk signal in her favour and that there was no evidence of contributory negligence. In finding the Plaintiff faultless for the collision Mr. Justice Steeves provided the following reasons: [82] More generally, the reason for the legal protection of pedestrians in crosswalks is the significant inequality in speed and force between a motor vehicle and a pedestrian. A pedestrian is entitled to walk through a crosswalk, taking reasonable precautions consistent with having the right of way, knowing that she is safe. I find that the plaintiff took those precautions and she is entitled to the legal protection of having the right of way under section 132(1) of the Motor Vehicle Act. [83] I also adopt the comments of a previous judgement (Hooper v. Nair, 2009 BCSC 862 at para. 32), I accept the plaintiff’s submission that in order to prove that a plaintiff pedestrian was contributorily negligent, the defendant driver bears the onus of establishing not only inadequate attention on the part of the pedestrian but also must show that by the time the pedestrian realized the driver was not going to yield the right-of-way to the pedestrian, that it would at that point have been possible for the pedestrian to avoid the driver’s car. As well, the driver must show that a reasonable person in the circumstances of the pedestrian would have taken and succeeded in actions which would have avoided impact with the driver’s car: Olesik v. Mackin (23 February 1987), Vancouver B860365 (S.C.); Pinto v. Rana, [1993] B.C.J. No. 1312 (S.C.). [84] I find that the plaintiff stepped into the crosswalk on Granville Avenue, going south, when the pedestrian signal said “Walk”. I accept her evidence that she pushed the button that controlled the pedestrian light and she waited for it to turn to “Walk”. Again, her evidence on this point was not directly challenged. The evidence and submissions that the plaintiff took inadequate attention or could have somehow avoided the accident are not, in my view, persuasive. More persuasive, is the defendant’s evidence that he could have looked to his left in order to see the plaintiff. [85] It follows from Section 132(1) and my findings above that the plaintiff entered the crosswalk with a “Walk” signal, that she had the right of way over all vehicles, including the defendant. It also follows that the defendant was negligent in not looking for pedestrians in the crosswalk when he made his left turn. To be clear, I do not find that the plaintiff was contributorily negligent.
Reasons for judgement were released last week by the BC Supreme Court, Chilliwack Registry, assessing damages for an aggravation of pain at a pre-existing surgical site.
In last week’s case (Hood v. Wrigley) the Plaintiff was involved in a 2010 collision. The Defendant admitted fault. Prior to the collision the Plaintiff had a large, cancerous tumor removed from his right thigh. He was left with a level of nerve damage at the surgical site. Following the collision this pain was aggravated. The Court accepted the aggravation was caused by the collision and the prognosis for symptom resolution was poor. In assessing non-pecuniary damages at $60,000 Mr. Justice Grist provided the following reasons: [3] The plaintiff had been off work for approximately five months in the year before the collision, from May to November 2009, after being diagnosed with a large, cancerous tumor located in the muscle tissue of his right thigh. The tumor was surgically removed, following which Mr. Hood was treated with chemotherapy and radiation. After the radiation treatment he was left with a mass of hardened muscle tissue in his right thigh and damaged nerves in his right leg which caused hypersensitivity and a burning sensation. [4] Following the motor vehicle collision the plaintiff developed neck pain and increased pain in his right leg, causing a marked limp and loss of his ability to do the physical aspects of his work. Additionally, the effects of his injuries impacted on many of the activities of his daily life… [22] There is no evidence that the cancer treatment caused a progressively deteriorating condition in Mr. Hood’s right leg. The medical records suggest he was managing with the residual effects of his cancer treatment. He had returned to full duties at his employment, without any indication of impairment, and the onset of his limp and functional disability closely ties to the collision. On the basis of this evidence, I conclude that Mr. Hood has been disabled from his employment because of the effects of the motor vehicle collision; and although the radiation treatment in his leg left him with residual effects, but for the injury he would not have incurred the disability that makes him unsuitable for his previous employment. [23] The prognosis in respect of the injury to the right leg is not hopeful, however, the prognosis for the neck injury is more optimistic. Dr. Grover concluded that while his neck complaints are likely to be long term, they weren’t likely to be permanent. His view was that Mr. Hood should be sent for physiotherapy and acupuncture, which may or may not help, but that in any event, the condition should resolve on its own… [49] In my view, the now more painful and disabling condition of the right thigh is an exacerbation of considerably more effect on the plaintiff than the pain and restriction on his mobility originally associated with the results of the radiation therapy. In addition to this, he is coping with the improving but still symptomatic neck condition. In light of these factors, I assess non-pecuniary damages in this case at $60,000.
In a very rare display of the BC Supreme Court’s powers pursuant to its inherent jurisdiction, and a strong reminder of the potentially high financial consequences of BC’s loser pays legal system, Mr. Justice Burnyeat released reasons for judgement ordering a Plaintiff to mortgage her properties to the amount of $100,000 as security for costs prior to allowing her claim to proceed to trial.
In today’s decision (IJ v. JAM) the Plaintiff sued the Defendants alleging sexual harassment The Plaintiff had other costs orders made against her and the Court found she had “a pattern of ignoring orders for costs that have been made“: The current Defendants applied for an order requiring $100,000 to be paid into court as security for costs. Mr. Justice Burnyeat agreed security was appropriate and provided the following reasons: [18] I am satisfied that “very special circumstances” are present so that an order for security for costs should be made. [19] First, the Plaintiff has a pattern of ignoring orders for costs that have been made: in the Petition for judicial review of the British Columbia Human Rights Tribunal decision where costs were awarded in favour of J.A.M. and, in these proceedings where an order for costs was made against the Plaintiff arising out of the dismissal of the civil claim against the G.S. and J.S. [20] Second, I take into account the merits of the claim of the Plaintiff. As I will be the trial judge for the lengthy trial that is scheduled for June 2013, I do not express any final opinion about the merits of the claim other than to observe that, as presently drafted, the claim against J.A.M. and J.M. is expressed in an often confusing, emotional and vitriolic manner, with many allegations not relating directly to the very serious claim that the Plaintiff makes against J.A.M. and J.M. It is not appropriate at this stage to make a fine assessment of the relative merits of the claim of the Plaintiff but only to observe that the claims are not so weak that they are bound to fail. However, regarding the claim, I take into account the agreement that was executed by the Plaintiff releasing the Company and officers, including J.A.M. for previous acts which occurred. It is a fair assessment at this point that the case of the Plaintiff has many problems… [25] The Defendants request the payment into Court of the sum of $100,000. It is clearly the case that such a sum is not available and that to require that sum to be paid would effectively deny the Plaintiff access to the Court. However, the affidavit of the Plaintiff is that the two Whistler properties have a value of approximately $729,000 and have charges against them of approximately $550,000 so that her equity is in the neighbourhood of $279,000. The Plaintiff also states that her property in Ontario has an approximate value of $560,000 with a mortgage of approximately $164,000 against it so that the approximate equity is $396,000. [26] Taking into account all of the circumstances surrounding the claim of the Plaintiff, I am satisfied that there is good reason and very special circumstances why an order for security for costs should be made. Accordingly, a mortgage in the amount of $100,000 without interest will be granted by the Plaintiff against her two properties in Whistler with the mortgagee being the Registrar of the Supreme Court of British Columbia. The mortgage is not to be discharged or enforced without the further order of the Court. [27] The Plaintiff will be required to sign that mortgage within ten days of it being tendered on her for her signature.
Adding to this site’s archives of soft tissue injury non-pecuniary awards, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, dealing with a chronic ‘moderate’ low back injury.
In last week’s case (Schafer v. Whitely) the plaintiff was involved in a 2010 collision. Although liability was disputed the defendant was found fully at fault at trial. The plaintiff suffered various injuries which improved by the time of trial with the exception of a low back injury of moderate severity which continued to pose problems. In assessing non-pecuniary damages at $70,000 Mr. Justice Halfyard provided the following reasons: [179] There is no dispute about the nature of the injuries sustained by the plaintiff as a result of the accident. She suffered minor injuries to her left knee and to her face, and experienced some headaches. These injuries, and the headaches, had resolved within a month or so after the accident. [180] I find that the plaintiff sustained injury to the soft tissues of the musculoskeletal structures of her neck and lower back. The injury to these structures has caused pain in the plaintiff’s neck and low back. By the time of trial, the plaintiff’s neck pain symptoms had resolved, but she continues to experience pain in her low back on an intermittent basis. [181] I find that the impact of the collision was violent and that the forces exerted on the plaintiff’s body were capable of causing, and did cause significant injury. Although the medical experts did not offer an opinion as to the severity of the injury, I find that the injury was at least moderate in severity… [197] In my opinion, having regard to the facts I have found, a fair and reasonable amount of damages for non-pecuniary loss would be $70,000, and I order that the plaintiff be awarded that amount under this head of loss.
The law in BC has long recognized that a Plaintiff can seek damages to reimburse banked sick leave benefits which are depleted due to an injury caused throught the negligence of others. Despite this litigants occasionally still argue that the law does not allow such recovery as it amounts to ‘double recovery’. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, disposing of this defence argument.
In this week’s case (Chingcuangco v. Herback) the Plaintiff was injured in a 2008 collison. She missed time from work and used up over $7,000 of banked sick time. In confirming that the Plaintiff can recover this loss Mr. Justice Weatherill provided the following reasons: [209] During a portion of the time when the plaintiff was unable to work, she was paid the wages that she otherwise would have received by drawing on her sick leave and vacation benefits. She seeks damages to reflect the depletion of those benefits. [210] The parties have agreed that the value of the plaintiff’s hours missed (sick leave and vacation time used with pay) totals $7,371.09. [211] The defendants argue that an award to the plaintiff in this regard will result in double recovery because she did not lose any money – she continued to receive her wages by drawing on her sick leave benefits and vacation time. [212] This issue was addressed by this court in Bjarnason v. Parks, 2009 BCSC 48. In that case, Madam Justice Ballance provided a thorough and helpful analysis:… [213] I agree with that analysis and I adopt it in its entirety. Here, the plaintiff exhausted her accumulated sick leave. She also used up several of her vacation days. She has had illnesses unrelated to the accident that have resulted in her being unable to work. She is likely to have them in the future. Her plan is to stay and make a career at CRA. [214] I am satisfied that the plaintiff is entitled to be compensated for her lost sick leave and vacation benefits which total $7,371.09. There will be no deduction for income tax.
I have canvassed this topic before and you can click here to access my archived posts addressing the law of recovery of sick time benefits.
Reasons for judgement were released this week by the BC Court of Appeal discussing the consequences that can flow when evidence is destroyed in the context of an ICBC Claim.
In this week’s case (Chow-Hidasi v. Hidasi) the Plaintiff was injured when involved in a single vehicle collision. The claim was dismissed at trial with the Court finding there was no negligence on the part of the driver and instead a mechanical failure may have contributed to the collision. The Plaintiff argued that the vehicle was prematurely destroyed and an adverse inference should be drawn that no mechanical failure took place. The BC Court Appeal upheld the trial result and in doing so provided the following summary of the law relating to spoliation of evidence: [27] Finally, I turn to the plaintiff’s argument that ICBC’s (apparent) destruction of the Jeep “effectively destroyed” her ability to challenge the theory of mechanical failure, and that the court below should therefore have inferred that an examination of the vehicle would have shown no mechanical failure. The plaintiff makes this argument on the basis of the Court’s inherent jurisdiction to ensure the fairness of the trial process. She also says the trial judge erred in failing to recognize that ICBC, rather than the plaintiff personally, was the “real party in interest”, such that the vehicle was destroyed by a person who was in effect the defendant in this litigation. [28] I have considerable sympathy for the plaintiff’s position, but in my view the presumption she seeks may not be drawn in the circumstances of this case. First, the evidence as to the conditions under which the Jeep was destroyed is negligible: there is only the defendant’s hearsay evidence that he was told that it had been destroyed. Most importantly, there is no evidence as to whether ICBC was aware the plaintiff would be making a claim or if she made any effort to advise them or have the vehicle examined before it was destroyed. (It was Mr. Hidasi who requested that the vehicle not be destroyed.) [29] On the present state of the law, it is clear that spoliation requires intentional conduct: see St. Louis v. Canada (1896), 25 S.C.R. 649; McDougall v. Black & Decker Canada Inc., 2008 ABCA 353 at para. 29; Endean v. Canadian Red Cross Society (1998) 157 D.L.R. (4th) 465 (B.C.C.A.); Dawes v. Jajcaj, 1999 BCCA 237 at para. 68; and the discussion in Holland v. Marshall, 2008 BCCA 468 at paras. 70-2. (I understand ‘intentional’ to mean ‘with the knowledge that the evidence would be required for litigation purposes’.) As stated in McDougall v. Black & Decker, “When the destruction is not intentional, it is not possible to draw the inference that the evidence would tell against the person who has destroyed it.” (Para. 24). [30] The Court observed in McDougall that where evidence has been destroyed unintentionally, a court of law may fashion a civil remedy to assist in ensuring the fairness of a trial. A costs award may be made, or evidence may be excluded. We were not referred to any case binding on us, however, that would indicate that such remedies would include the drawing of an adverse inference such as that sought in this case by Ms. Chow-Hidasi. (See McDougall, para. 25, British Columbia Law Institute, Report on Spoliation of Evidence (2004), at 10-20.) [31] In my view, neither the state of the law nor the evidence as presented in this case could support the drawing of an adverse inference that an examination would have shown no mechanical failure in the brakes or steering wheel of the Jeep. Like all litigants, the plaintiff was required to prove her case on the evidence available to her at the time of trial. I would therefore dismiss this ground of appeal.
In an illustration of BC’s motor vehicle insurance system having real teeth to punish fraudulent acts, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, ordering substantial damages against a couple who produced a false witness to ICBC following a motor vehicle collision.
In this week’s case (ICBC v. Panag) the Defendant was involved in a 2006 collision. The parties had competing versions of how the collision occurred. The Defendant produced a witness in support of her claim. After investigation ICBC determined this individual in fact did not witness the collision and was known to the Defendant.
ICBC paid out over $188,000 in claims following the crash. ICBC held the Defendant in breach of insurance and sued to recover this money on the basis that the Defendant attempted to commit insurance fraud. Mr. Justice Grauer agreed and ordered repayment of these damages along with punitive damages. In reaching this decision the Court provided the following reasons: 64] In these circumstances I am satisfied that the Panags and Harinder Grewal were in fact involved in a conspiracy to put forward Mr. Grewal to ICBC as a witness to the collision knowing that he had not in fact witnessed it, and with the intention that he provide ICBC with evidence that he did not have and which they knew to be untrue. The facts, in my view, cannot fairly admit of any other inference. Speculation is not required… [67] It follows that both Mr. and Mrs. Panag participated in a conspiracy to deceive ICBC about both how the accident happened and the status of Mr. Grewal as a witness to the accident. They clearly intended ICBC to rely upon their representations, and ICBC as a result was left scrambling for a considerable period of time as it embarked upon an extensive investigation in an attempt to straighten out what would otherwise have been and should have been a straightforward matter. This amounts to fraud. See, for instance, ICBC v. Nisbet, 2009 BCSC 1570, at para. 85. [68] In the result, the Panags have forfeited their right to coverage under s. 19(1)(d) of the IMVA as well as s. 19(1)(e), and ICBC is entitled to recover against both of them. Whether directly as a consequence of the Panags’ conspiracy to commit fraud or as a result of the application of the principles of unjust enrichment, this would include the moneys paid out to Mr. Panag for his material damage claim and to Mrs. Panag for her Part VII claim. The total amount awarded to ICBC in this regard is $188,722.86, which I am satisfied accurately represents what ICBC paid out, to which I add pre-judgment interest of $8,460.21. I have deducted $305.06 from the interest claimed because of the absence of evidence concerning the date when expenses related to surveillance were incurred… [70] In providing ICBC with willfully false statements and in conspiring to commit fraud, the Panags undoubtedly engaged in conduct that was reprehensible. In the particular circumstances of this case, however, I note that the consequences of their actions have exposed them to statutory liability far beyond the actual financial consequences of their actions. Had they succeeded in their deception, they would have saved a mere $801 plus whatever might have been gained through a potential personal injury claim. Now they must pay over $188,000 plus interest…
