Adding to this site’s archived posts addressing claims of vicarious liability, reasons for judgement were released this week by the BC Supreme Court, Penticton Registry, considering a claim seeking to hold a School District liable for a school-ground assault.
In this week’s case (Jackson v. School District No. 53) the Plaintiff sustained a traumatic brain injury after being punched by another student. The Plaintiff sued the School District arguing the assailant was involved in a previous assault several months earlier and the School District failed to impose adequate discipline which “emboldened (the assailant) by lack of proper discipline“.
Mr. Justice Bernard rejected this argument and dismissed the Plaintiff’s claim finding that even if the school was not harsh enough in their prior discipline there is no chain of causation. In dismissing the claim the Court provided the following reasons: [42] Even if, however, significantly harsher disciplinary measures than those taken ought to have been employed for the March 2 incident, I am unable to conclude that the plaintiff has established the requisite nexus between that failure and the subsequent assault upon him. In this regard, it is noteworthy that seven uneventful months transpired between the two incidents; that the incidents occurred in separate school years and at a time when children and their behaviours are changing rapidly; that it makes little sense that Tylor’s state of mind about Makwalla would have turned on his awareness of the discipline imposed on Makwalla rather than of the details of the incident itself; and, that it would require considerable speculation to conclude either that Makwalla would have been sufficiently deterred or rehabilitated such that the assault upon Tylor would probably not have occurred, or that the assault occurred because Makwalla was emboldened by the inadequacy of the discipline.
Although video surveillance is not always a useful tool in personal injury litigation, it sometimes is used effectively. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating such evidence assisting in challenging a personal injury claim.
In last week’s case (Berenian v. Primus) the Plaintiff was involved in a 2006 collision when he was travelling on foot and struck by the Defendant’s vehicle. Although liability was disputed the defendant was ultimately found 100% at fault for the collision.
The Plaintiff sought damages for soft tissue injuries which he says took 18 months to clear. He further advanced a claim that the injuries “have impacted his routine… because of them, he was not able to run in the usual fashion and it was in fact some time later that he was able to get back to his pre-accident routine“.
The Defendant “robustly disputed” this allegation and produced video evidence of the Plaintiff jogging in the month following the collision. Mr. Justice Williams concluded that the injuries sustained in the collision were “fairly minor” and assessed non-pecuniary damages at $4,000. In rejecting the claims of long-standing consequences from the injuries the Court provided the following comments: 50] As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver. [51] The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes. [52] Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes. [53] The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion. [54] At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes. [55] At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes. [56] Quite predictably, the apparent discrepancy between these activities and the manner in which the plaintiff had represented his injuries and their effects was the basis of some real dispute at trial… [68] I am concerned with the veracity of the plaintiff’s claims regarding the extent, severity and effects of the injuries he suffered. The principal basis upon which the claim rests is his testimony, his description. There is not any notable objective evidence to support his assertions of the quite extensive nature of the consequences… [70] In the final analysis, I have very serious doubts as to the truth and reliability of the plaintiff’s description of the extent of the injuries and their impact upon him. My conclusion is that there was some soft tissue injury – bruising and discomfort – but it was fairly minor in that he was able to resume his running within a month. In view of that finding, while I accept there may have been some lingering residual discomfort, it would be of a fairly modest magnitude. [71] Similarly, as for his claims that his neck pain continued for 12 to 18 months, that the headaches persisted for six to eight months, and his complaint of low back pain, I find that he has not proven on a balance of probabilities that such injuries resulted in discomfort such as he describes. On the evidence, it was substantially less.
Adding to this site’s archives of BC Supreme Court damage assessments for Thoracic Outlet Syndrome, reasons for judgement were released last month addressing such an injury.
In last month’s case (Jawanda v. Samra) the Plaintiff was injured in a 2006 collision. She was 29 years old at the time and 35 by the of her trial. She suffered from Thoracic Outlet Syndrome as a result of the collision with accompanying chronic pain. The Plaintiff, although able to hold down employment despite her injury, remained symptomatic and the injuries were expected to be permanent. The Court accepted the following medical evidence addressing prognosis: With respect to her thoracic outlet syndrome, it is now a permanent injury to the scalene muscles in an already compromised thoracic outlet due to her congenital cervical ribs. It is my opinion that Ms. Jawanda’s symptoms are unlikely to change or improve but it is my opinion that the symptoms of numbness and tingling and paresthesias would get worse if she was forced to overdo it or continue to do heavy activities which exacerbated her symptoms. This would lead to more chronic muscle and nerve injury and more prolonged pain.
In assessing non-pecuniary danages at $75,000 Mr. Justice MacKenzie provided the following reasons: [143] Balancing all of the evidence I have accepted, I find Ms. Jawanda suffers from mild to moderate chronic pain and thoracic outlet syndrome. Coupled with the authorities referred to by counsel, I am satisfied a fair and appropriate award for non-pecuniary damages is $75,000.
(Update December 3, 2013 – the below decision was upheld in reasons for judgement released today by the BC Court of Appeal)
————————————————————————————————– Last year the BC Supreme Court found that employer paid wage replacement benefits are non-deductible in ICBC hit and run claims. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, considering this issue in the context of an uninsured ICBC Claim.
In this week’s case (Jordan v. Lowe) the Plaintiff was injured by an uninsured motorist. He successfully sued for damages. When seeking to collect damages from ICBC pursuant to section 20 of the Insurance (Vehicle) Act ICBC argued they could deduct from the judgement the amount of sick leave benefits the Plaintiff collected from his employer. Mr. Justice Willcock dismissed this argument finding these benefits did not have an element of insurance to them thereby not making them deductible The Court provided the following reasons: [20] ICBC suggests the amendment to the Regulation, the addition of the words “compensation similar to benefits” to the definition of an insured claim, signalled the legislature’s intention to expand the definition. I agree that must necessarily be so. ICBC further suggests the expansion brought into the definition of an insured claim benefits that are not paid pursuant to insurance and the definition no longer necessarily imports an element of insurance. With respect to the able submissions of counsel, I cannot agree. [21] When it enacted the most recent amendments to the Regulation, the legislature must be taken to have been aware of the judgment of the Court of Appeal in Lopez. The conclusion in Lopez that the definition necessarily imports an element of insurance was founded upon the presence of the subheading to Regulation 106(1), “Exclusion of other insured loss”, and to the fact that the Regulation itself describes what are considered to be “insured claims”. While the legislature has expanded the definition of what constitutes compensation or a benefit, it has not removed or varied the subheading of the Regulation in question and has not excluded from ICBC’s liability anything other than “insured claims”. [22] There was some discussion in Lopez with respect to what constitutes a “benefit” under the applicable section. The amendment to the Regulation addresses that discussion and, in my view, may be applicable in some circumstances where there is some doubt with respect to what compensation in the nature of insurance is deductible. It does not, however, remove or vary the requirement described in Lopez that the compensation must have an element of insurance to it. [23] For reasons set out in Loeppky, which I adopt and follow, I find payment of sick leave benefits to police officers employed by the City of Vancouver Police Department pursuant to their collective agreement do not have about them an element of insurance. They are clearly benefits or compensation similar to benefits, but that alone does not suffice to cause them to fall within s. 103 of the Regulation. ICBC is not entitled to deduct them from its liability to satisfy the plaintiff in relation to his claim against the designated defendant, Mr. Lowe.
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
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.
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.
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.
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.
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.
