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

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases. 61 Comments on $60,000 Non-Pecuniary Assessment For Chronic Shoulder Soft Tissue Injury

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a chronic shoulder soft tissue injury.
In this week’s case (Jorgensen v. Coonce) the Plaintiff was injured in 2009 when the vehicle in which he was a passenger left the roadway and collided with some trees.  The defendant admitted fault.
The Plaintiff suffered a soft tissue injury to his shoulder which remained symptomatic at the time of trial and was expected to pose continued difficulties in the future.  In assessing non-pecuniary damages at $60,000 Mr. Justice Baird provided the following reasons:
[90]         In short, I conclude that the plaintiff suffers from chronic pain from a soft tissue injury in the area of his right shoulder sustained in the May 2009 accident. This injury is not related to the physical or functional deficits that the plaintiff continued to experience as a result of the April 2006 accident for which, as I have noted, the present defendant is not liable.
[91]         The May 2009 injury has impacted the quality of the plaintiff’s life in material measure. He has been unable to pursue his sporting and recreational activities. Worse still, his relationship with his children has suffered because of his physical limitations. He has also been affected, not only in his enjoyment of work, but in his capacity to perform his work adequately, and on all of the evidence I consider it possible that this reduced capacity played a role in his dismissal from long-term, secure, well-paying employment in the paving business…
[106]     Having due regard to the often cited factors articulated in Stapley v. Hejslet, 2006 BCCA 34 at paragraph 46 and the observations of the Supreme Court of Canada in the Lindal v. Lindal, [1981] 2 SCR 629 at p. 637, and employing a discount in light of my findings respecting the plaintiffs pre-existing injury or condition for which the present defendant is not responsible, I have decided that an appropriate award for general damages in this case is $60,000

Litigants Prohibited From Self-Recording Examinations For Discovery

Written by admin on . Posted in BCSC Civil Rule 12, BCSC Civil Rule 7, Civil Procedure. 80 Comments on Litigants Prohibited From Self-Recording Examinations For Discovery


Adding to this site’s archived posts relating to examinations for discovery under the BC Supreme Court Rules, reasons for judgement were released this week addressing whether a party may self-record an examination for discovery.  In short the answer is no.
In this week’s case (Rassaf v. SNC-Lavalin Engineers and Constructors Inc.) the Plaintiff indicated he wished to record his own discovery.  The Defendant brought an application prohibiting him from doing so.  In granting the application Mr. Justice Goepel provided the following reasons:
[6]             A somewhat similar situation arose concerning the power of parties to videotape examinations for discovery. In Ramos v. Stace-Smith (2004), 24 B.C.L.R. (4th) 333, Mr. Justice Fraser allowed an examination to be videotaped.
[7]             That decision was subsequently followed in Ribeiro v. Vancouver (City), 2004 BCSC 105. The Ribeiro case was appealed. The appeal judgment is found at 2004 BCCA 482. On appeal, Madam Justice Southin held that the decision in Stace-Smith was wrongly decided and similarly the chambers judgment in Ribeiro, which had followed Stace-Smith, was similarly wrongly decided. In reaching her decision, she noted that there was no provision in the Rules for an order for videotaping. She said at para. 3:
There is no provision in the Rules of the Supreme Court of British Columbia for the order which was pronounced in this case. Since time immemorial, that is to say since examinations for discovery were first permitted in this province which I think now is about 80 or 90 years ago, they have never been filmed by any method at all. If they are to be, there must be a change in the Rules of the Court to permit or authorize such a practice, or, in my view, there must be at least a practice direction emanating from the whole of the Supreme Court of British Columbia on the point. In making the latter remark, I am not saying that a practice direction would necessarily be valid in such circumstances. Matters of practice and procedure in the court below must be governed by its Rules, and those Rules must be duly enacted under theCourt Rules of Practice Act. It is certainly open to the Lieutenant Governor in Council to permit what Mr. Potts says is a very good idea but she has not done so. It is not appropriate for a single judge of the court below to engage in matters of practice and procedure in what I call judicial individualism. The course of the court below is the law of the court and the course has never been to engage in such a practice.
Those words apply in these circumstances.
[8]             It has not been the practice that individual parties are allowed to record examinations for discovery. There is no provision for same in the Rules. In these circumstances it would not be appropriate for me to allow such to occur. Accordingly, I am granting the defendant’s order, and the plaintiff will be prohibited from recording by any means his examination for discovery.

Low Velocity Impact Defence – Not Based on Science, Not Even "Common Sense"

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived posts addressing Low Velocity Impacts, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, rejecting this defence.
In last week’s case (Christoffersen v. Howarth) the Plaintiff was involved in a 2010 rear end collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a soft tissue injury which was still symptomatic at the time of trial but there was an “excellent prognosis” for full recovery.  The Court assessed non-pecuniary damages at $35,000 but prior to doing so Mr. Justice Weatherill provided the following comments criticizing the LVI Defence:
[54]         The defendant urges me to draw what she described as the common sense inference that the plaintiff could not have been injured in such a minor collision.  Simply put, the defendant argues that the minimal damage speaks for itself and that no other evidence is necessary to show the plaintiff did not sustain any injury…
[58]         In order to accept the defendant’s argument, I would have to completely disregard the evidence of both the plaintiff and Dr. Morgan that the plaintiff was injured as a result of the collision.  I am not prepared to do so.  I found each to be credible, honest and forthright.  Their evidence was uncontroverted by the defendant.  At most, the plaintiff’s evidence was shown on cross examination to have been exaggerated in a few minor respects.
[59]         The defendant chose not to lead any medical evidence or opinion to contradict that of Dr. Morgan.  No evidence was led by the defendant regarding the amount of force that the plaintiff’s body was subjected to during the collision or how the shock absorbers built into the vehicles’ bumpers affected the damage that otherwise would have been sustained.  In my view, such evidence was required if the defendant wished to argue that the plaintiff was not injured by this collision.
[60]         I accept that the collision was relatively minor.  However, even a low impact collision can cause injury: Lubick v. Mei, 2008 BCSC 555 at paras. 5-6.  Here, the evidence clearly establishes that this low velocity impact was sufficient to move the plaintiff’s vehicle forward from a completely stopped position even though the plaintiff had her foot on the brake pedal. 
[61]         Causation has been established by the plaintiff.

Treating Physician Opinion Discounted for Advocacy

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized.

In a demonstration that  judicial criticism of expert witness ‘advocacy’ is not reserved for so-called “independent” experts, reasons for judgement were released this week addressing the evidence of a treating physician who crossed the line into patient advocacy.
In this week’s case (Brown v. Raffan) the Plaintiff was injured in a motor vehicle collision and sought damages of over $200,000.  The Plaintiff provided evidence and also relied on the medical opinion of her physician.  The Court rejected much of the claimed damages finding that the Plaintiff was “not reliable” as a witness.  The Court went further and criticized her treating doctor finding that the opinions shared with the Court crossed the line into advocacy.  In rejecting much of the presented medical evidence Mr. Justice Verhoevan provided the following comments:
[66]         The plaintiff has continued to be treated by Dr. Campbell, who has seen her more than 70 times since the accident. Unfortunately, in general, I do not consider the evidence of Dr. Campbell to be reliable. There are several reasons for this.
[67]         Firstly, in my view, Dr. Campbell’s sympathy for his patient and her claims has resulted in him becoming an advocate for the plaintiff.
[68]         On reading his report and hearing his evidence, the theme that emerges is one of solidarity by Dr. Campbell with Ms. Brown’s complaints about lack of support from ICBC, and her plight as a blameless victim.
[69]         At numerous instances in the report, Dr. Campbell relates Ms. Brown’s complaints that ICBC failed to refuse to provide for interim wage loss payments, or cost of treatment such as physiotherapy, psychological counselling, or reimbursement for her broken dental plate. Although reciting the plaintiff’s complaints in relation to ICBC might conceivably be relevant background information, it is clear on the report and on Dr. Campbell’s testimony as a whole that he shares his patient’s views that she is a blameless victim of injustice who has been badly treated by ICBC, and, further, that she deserves compensation.
[70]         In the summary and opinion portions of his report, Dr. Campbell mentions several times that Ms. Brown was “blameless” or “blameless victim” in the motor vehicle accident. Such comments have no proper place in an expert’s report, and indicate a conflict with the duty of an expert to assist the court and refrain from being an advocate for a party as set out in Rule 11-2 of the Supreme Court Civil Rules.
[71]         Dr. Campbell also mentions several times that the plaintiff has been given no support or treatment by ICBC. These inappropriate comments are thoroughly enmeshed in his report. I think it best to simply set out some extracts of the report in this respect, in which I have emphasized the offending material….
[86]         In summary I conclude that, in general, I cannot rely upon the medical report and opinion of Dr. Campbell.

Medico-Legal Reports from Previous Lawsuit Ordered Disclosed in Subsequent Litigation

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

In the ever developing landscape of disclosure obligations in personal injury lawsuits, reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, addressing the discoverability of medico-legal reports obtained in previous litigation.
In the recent case (Wright v. Thomas) the Plaintiff was involved in a personal injury lawsuit that went to trial in 2007.  In that lawsuit various expert reports were introduced into evidence.  The Plaintiff was injured in a subsequent collision and advanced another lawsuit.  The Defendant wished to rely on the previous medico-legal reports but the Plaintiff objected arguing these reports were not relevant and production violated the implied undertaking of confidentiality.  In ordering that the reports be produced Master Bouck provided the following reasons:
[16]         Whether the implied undertaking rule even applies in this case might be in doubt. In Cochrane v. Heir, 2011 BCSC 477, the court ruled that a plaintiff must provide records obtained in a previous personal injury action as part of disclosure obligations under Rule 7?1. Furthermore, one might query whether evidence disclosed at a public trial and now part of a public record is subject to the implied undertaking rule. The underlying purpose of the implied undertaking rule is to protect the privacy of an individual who is compelled to disclose certain information in the pre?trial process.
[17]         In the case at bar, I understand that some of the reports were used at trial and thus any breach of privacy has already happened. However, this last point was not argued, so I must still determine whether the documents at issue involving the same plaintiff also concerned the same or similar issues to the case at bar…
[21]         In the present action, the clinicians also make mention of possible conversion disorder.
[22]         The alleged probative value of the reports in the earlier action is to show that the plaintiff has a history of, or perhaps a susceptibility to, these non?organic conditions.
[23]         In my view, in the absence of some medical evidence in support, the court should not make the leap and decide that all of the above?described conditions fall within the same diagnostic category. In fact, the only similar or same diagnosis is the conversion disorder. Presumably the existence of this condition historically forms the factual basis for one of the defences to this action, otherwise the defendant would not be pursuing the application.
[24]         The defendant’s pleadings were not before me. It might have been helpful to have that pleading as an exhibit to an affidavit. One option for the court would be to dismiss the application with liberty to reapply upon providing such evidence. Obviously a further application will result in additional cost to one or both parties. To avoid such cost, I have instead reviewed the electronic record of this pleading, which is a matter of public record. The presumption of the plea of pre?existing condition was confirmed.
[25]         Thus, in my view, the defendant has met the threshold test of relevancy with respect to the following reports: Dr. Rocheleau dated October 24, 2005; Dr. Rocheleau dated December 21, 2005; and Dr. Kemble dated November 28, 2005…
[27]         I now turn to the question of prejudice. First, there is no evidence from the plaintiff that she is prejudiced by the use of this information. The contents of the affidavit of Katheryn MacDonald can be given no weight, as any statements regarding possible prejudice are based on double hearsay. Other parts of the affidavit are akin to argument.
[28]         In any event, the implied undertaking rule is not intended to prevent attacks on the plaintiff’s credibility. Indeed, in many of the cases before me, leave is granted to permit a challenge to a party’s credibility using the evidence given at a previous examination for discovery. Prejudice to the plaintiff has not been established.
[29]         Nevertheless, in my view, the order sought by the defendant with respect to the use of the reports at trial is too broad. Rather, the order will go that the defendant is given leave to list the three reports in her list of documents.

$130,000 Non-Pecuniary Assessment for Bimalleolar Ankle Fracture With Chronic Limitations

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a serious ankle injury leading to permanent partial disability.
In this week’s case (Hubbs v. Escueta) the Plaintiff was injured in a motorcycle accident when he was struck by the Defendant.  Although liability was contested the Court found the Defendant’s evidence was “not credible” and he was found fully at fault for the collision.
The Plaintiff suffered a complex bimalleolar ankle fracture which was treated surgically.

(Image via Wikimedia)
The hardware was eventually removed but the Plaintiff’s symptoms continued.  He was expected to have permanent restrictions with his ankle and was exposed to risk of early degenerative changes leading to further deterioration   The Plaintiff worked as an electrician and his ability to do so was significantly compromised by this injury.  In assessing non-pecuniary damages at $130,000 Madam Justice Ross provided the following reasons:
[135]     This case highlights the importance of the individual circumstances. The injury suffered by Mr. Hubbs is serious. While the consequences for someone of more sedentary occupation and lifestyle might not have been so significant, for Mr. Hubbs the injury has proven to be life changing. He is a relatively young man who now faces a lifetime of limitation and disability. Mr. Hubbs’ livelihood requires strength, agility and balance, all of which have been impaired by the injury. The injury has impaired his ability to earn his living. He has worked through the pain, but at a terrible cost to his family life. He is no longer able to enjoy the active lifestyle he loved. His mood is depressed and he has little energy for anything except the struggle to put in a day at work. His relations with his wife and children have been damaged. It appears that he has reached a plateau in his recovery and faces a future of increased deterioration and vulnerability to injury.
[136]     In my view, the cases cited by plaintiff’s counsel are more representative of the circumstances in the present case. I award $130,000 for non-pecuniary loss.

Social Host Lawsuit Survives Summary Dismissal Application

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


As previously discussed, the circumstances of when a social host (ie – the host of a private party at a residence) can be held liable for injuries caused when an intoxicated guest leaves and causes injury to others is an open one.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, further addressing this area of the law.
In today’s case (Lutter v. Smithson) the plaintiff was injured when a vehicle in which he was a passenger was struck by the defendant Smithson.  Prior to the collision Smithson, who was 18 at the time, attended a “Bring Your Own Booze” party and became “very drunk“.  The party was hosted by the Defendants Mazus to celebrate their daughter’s 19th Birthday   The Mazus brought a summary dismissal application arguing that they cannot be held liable in these circumstances.  Mr. Justice Macaualy dismissed the application finding this “novel question of liability” should be decided via full trial.  In doing so the Court provided the following reasons:
[15]         As a more general proposition, I am satisfied that the novel question of liability arising out of the consumption of alcohol by a minor at a party hosted on a defendant’s property as raised in this case is best addressed after a full trial. That approach ensures the most complete record possible. In reaching that conclusion, I take into account the additional costs to the Mazus associated with the trial process but there is otherwise no prejudice. In Sidhu v. Hiebert, 2011 BCSC 1364, the summary judgment application judge reached a similar conclusion…
[21]         Childs is a very important decision relating to social host liability. In determining the sufficiency of the affidavit material here and whether it is just to decide the issues on summary judgment, a review of the principles that emerge from the case assists.
[22]         In Childs, the defendant homeowners hosted a party, during the course of which they served a small quantity of alcohol to adult guests. For the most part, the event was “BYOB”. The defendants knew that one of the guests, Desormeaux, was known to be a heavy drinker. As Desormeaux walked to his car to leave, one of the hosts inquired if he was okay to drive. Desormeaux responded affirmatively and drove away. The accident ensued.
[23]         Childs was the first time the Supreme Court considered whether social, as opposed to commercial, hosts who invite guests to an event where alcohol is served owe a duty of care to third parties who may be injured by intoxicated guests (para. 8).
[24]         The court did not accept that the existence of a duty on the part of commercial hosts could be extended, by analogy, to the hosts of a private party (para. 23). Accordingly, the court went on to apply the first stage of the Anns test (Anns v. Merton London Borough Council, [1978] A.C. 728), and concluded, for two reasons, that the necessary proximity had not been established (para. 26):
First, the injury to Ms. Childs was not reasonably foreseeable on the facts found by the trial judge. Second, even if foreseeability were established, no duty would arise because the wrong alleged is a failure to act or nonfeasance in circumstances where there was no positive duty to act. [Emphasis added.]
[25]         Of potential significance here, the trial judge in Childs never found that the hosts knew, or ought to have known, that the guest who was about to drive was too drunk to do so. For that reason, foreseeability, and accordingly proximity, were not established. Although there was evidence that Desormeaux had a high blood alcohol rating, evidence that the hosts knew of his intoxication was absent (para. 28).
[26]         At first blush, Mrs. Mazu’s admission that she knew Smithson was drunk before he left the party appears to fill the foreseeability gap that the Supreme Court first identified in Childs. That appears to strengthen the application respondents’ contention that foreseeability may be established here.
[27]         As to the second point made in Childs respecting the lack of a positive duty to act, the hosts and guests were all adults. The court identified the lack of paternal relationship between host and guest, coupled with the autonomy of the guest, as factors that militated against imposing a positive duty to act on the hosts (see paras. 42–45).
[28]         In the present case, the application respondents point out that s. 33(1)(c) of the LCLA forbids a host permitting a minor to consume liquor “in or at a place under his or her control.” At the material time, the uncontradicted evidence is that Smithson was 18 years old and, accordingly, a minor. I agree with the respondents that this may militate in favour of imposing a positive duty. The evidence also reveals that other minors were present at the party, although it may be that most were also close to the age of majority.
[29]         To adopt some of the language in Childs, found at para. 45, these distinctions raise the question whether an adult host is actively implicated in the creation or enhancement of the risk if she permits an underage person on her property to consume alcohol to the point of intoxication, perhaps extreme intoxication. As in Sidhu, that important question is, in my view, better left to be determined upon the fullest record available after a regular trial. Accordingly, it would be unjust to decide the issue on a summary judgment application.
[30]         There is, in my view, a significant risk of injustice in attempting to determine the answers to the essential questions that the Mazus raise in this case on a summary trial. I dismiss the application.

"It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Written by admin on . Posted in ICBC PTSD Cases, ICBC Wage Loss, Uncategorized. 53 Comments on "It is Not for the Tortfeasor" To Dictate Timelines for a Plaintiff's Retirement

Interesting reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing mitigation of damages in a personal injury claim seeking compensation for reduced pension benefits.
In this week’s case (Wangert v. Saur) the Defendant died when his vehicle collided with a train operated by the Plaintiff.  The Plaintiff suffered from Post Traumatic Stress Disorder and missed some time from work.  The Plaintiff retired in 2012 and sought damages for a reduced pension arguing that had he not been psychologically injured by the collision he would have worked more hours thereby having greater pensionable earnings.
The Defendant argued that since, at the time of the Plaintiff’s retirement at age 55, he was able to work full time and had no residual difficulty from the Accident he failed to mitigate his damages by not working past his otherwise planned retirement in order to earn a greater pension.  Mr. Justice Abrioux rejected this argument providing the following reasons:
[34]         In this case, I accept the plaintiff’s evidence that he had always planned to retire at the age of 55. He had spent many years working for CP Rail.
[35]         The defendant did not cite any legal authority supporting his position that a plaintiff could have mitigated losses by working past his or her planned retirement age. I was also unable to find any.
[36]         In my view, planning for retirement is a very important stage in a person’s life. When one has the opportunity to retire at a certain age, even though continuing to work remains available, the decision to retire is not entered into lightly. It is not for the tortfeasor to take the position that the plaintiff‘s failure to change his life plan due to an accident which occurred through no fault of his own, amounts to unreasonable conduct.

"Significant Prejudice" Bars Admission of Late Defence Rebuttal Report

Written by admin on . Posted in BCSC Civil Rule 11. 46 Comments on "Significant Prejudice" Bars Admission of Late Defence Rebuttal Report

As previously discussed, Rule 11-7(6) allows the BC Supreme Court to admit expert evidence that does not otherwise comply with the Rules of Court.  Reasons for judgement were released last week addressing this discretionary power in cases where prejudiced is caused by the late report.
In last week’s case (Neyman v. Wouterse) the Plaintiff was injured in a 2007 collision.  The Defendant proceeded to trial with only one expert report which was served well outside of the timelines required by the Rules of Court.  The Defendant asked the Court to allow the report into evidence arguing that there would be severe prejudice if the report was excluded as “it is the only medical evidence available to him to tender into evidence“.
Mr. Justice Walker refused to allow the report in finding the Plaintiff would be prejudiced by depriving her adequate time to prepare for cross-examination.  In so finding the Court provided the following reasons:
26]         I am satisfied that plaintiff’s counsel has, through no fault of his own or of his client, not been able to properly consult with his client’s medical experts to determine the answers to those questions. It is also clear to me that standing the trial down for a half day or day or two does not afford the plaintiff and her counsel the opportunity to properly respond to Dr. Bishop’s report, even if it was admitted on a redacted basis.
[27]         In all, I am satisfied, from counsels’ submissions and from the nature of the evidence given by the medical experts to date, that plaintiff’s counsel may well have approached the preparation and prosecution of his client’s case quite differently if he had known that Dr. Bishop’s report was to be admitted…
[32]         As a result of his position concerning terms, which in my respectful view seeks to constrain the outcome of the application to the defendant’s greatest advantage, I conclude that the defendant cannot meet the requirements of Rule 11-7(6)(b).
[33]         Lastly, turning to sub-rule (c), as Savage J. noted in Perry, there must be some “compelling analysis” why the interests of justice require the Court to exercise its discretion to allow the “extraordinary step” of abrogating the requirements of the Rules. None was presented by the defendant in submissions. Moreover, I find that the circumstances of this case, particularly the dilatory conduct of the defendant, do not compel me to exercise my discretion under sub-rule (c) to admit Dr. Bishop’s report into evidence without an adjournment on terms. To otherwise admit Dr. Bishop’s report would not be in the interests of justice.
[34]         As a result, the defendant’s application is dismissed. Dr. Bishop’s report will not be admitted into evidence.

Court Finds ICBC Settlement "Not a Family Asset" in Divorce Proceedings

Written by admin on . Posted in Uncategorized. 47 Comments on Court Finds ICBC Settlement "Not a Family Asset" in Divorce Proceedings


While there is no ‘one size fits all‘ answer to the question of whether a personal injury settlement is a family asset in divorce proceedings, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, highlighting circumstances where it is not.
In this week’s case (Shen v. Tong) the parties ‘lived in a marriage-like relationship‘ since 2004 and were married in 2008.  In 2004 the Respondent was injured in a collision and she subsequently settled her ICBC claim in 2006.  The funds were invested and still available at the time of the Divorce and the Claimant sought an order declaring this money as a family asset.  Madam Justice Stromberg-Stein refused and provided the following reasons:
[40]         Ms. Tong’s position is her ICBC settlement is not a family asset.  It was largely for general damages and of the $13,564 for past wage, about half this time was before their relationship started.  Ms. Tong invested the settlement proceeds and never used them for a family purpose.  She maintained she wanted to save the award for her recovery but she did not have to use it for that purpose as she had Mr. Shen’s benefits.  She sent the invested proceeds, now $60,000, to her parents in China in January 2012.
[41]         The ICBC settlement is not a family asset.  Ms. Tong does not have to account for what amounts to a negligible wage loss claim.