Skip to main content

Lack of Financial Means Defeats "Failure to Mitigate" Allegations

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 53 Comments on Lack of Financial Means Defeats "Failure to Mitigate" Allegations

As discussed on numerous occasions, a Plaintiff who fails to take reasonable steps to aid in their own recovery can have their damages reduced for a ‘failure to mitigate’.  In considering weather a Plaintiff’s failure to seek treatment is reasonable their personal circumstances are taken into account.  It is well established that lack of funding can reasonably excuse a course of otherwise helpful therapy.   Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, further demonstrating this principle.
In this week’s case (Rozendaal v. Landingin) the Plaintiff was injured in two collisions.  She was faultless for both.  She suffered soft tissue injuries to her neck, shoulders and upper back which continued to the time of trial and were expected to carry on in the future.  Non-Pecuniary damages of $40,000 were awarded.
The Defendant argued that the Plaintiff’s damages should be reduced due to her failure to carry on with physiotherapy.  Madam Justice Holmes found that greater therapy indeed would have made a difference but given the Plaintiff’s circumstances her failure to attend was not unreasonable.   In dismissing the defendant’s arguments the Court provided the following reasons:
[66]         On the medical evidence, I find that Ms. Rozendaal likely could have improved to a greater extent and more quickly had she undertaken a focussed course of strengthening and conditioning therapy or training designed for her particular injuries, such as Dr. O’Connor outlined in his second report.  The various forms of massage Ms. Rozendaal undertook gave her relief from her pain, but, as Dr. O’Connor explained, passive therapies did not help rehabilitate the muscles which, ultimately, were causing that pain.
[67]         The question is whether Ms. Rozendaal acted unreasonably by failing to undertake the recommended therapies or programs.  I find that in her particular personal circumstances, she did not.  ..
[70]         As I find, Ms. Rozendaal’s life circumstances left her unable to fund any form of ongoing treatment or therapy.   From their early days together, she and Mr. Landingin have worked extremely hard to educate themselves for careers and to provide financial support and loving care for their young family.  It is clear from the evidence that life was not easy for them.  I have no difficulty accepting that other financial priorities displaced ongoing physiotherapy or active rehabilitation for Ms. Rozendaal, particularly since it seemed to her that massages from Mr. Landingin and exercises she did at home were just as helpful. 
[71]         As I find, Ms. Rozendaal was mistaken in this assessment.  However, it was only when Dr. O’Connor saw Ms. Rozendaal before preparing his second report (of January 18, 2012), and asked her to demonstrate the exercises she had been doing since he had seen her six months earlier, that he realized that he had not given his instructions specifically enough:  Ms. Rozendaal was doing light aerobic work and some gentle neck exercises, but no real strengthening.  Dr. O’Connor testified that because Ms. Rozendaal had evidently misunderstood his recommendation in the previous report, he described the recommended conditioning more explicitly in the second report.
[72]         The law does not require perfection in the pursuit of rehabilitation.  It requires instead that a plaintiff make efforts which are reasonable and sincere in the plaintiff’s own personal circumstances:  Gilbert at para. 203.
[73]         On this basis, in Tsalamandris v. MacDonald, 2011 BCSC 1138 at paras. 227-30, varied on other grounds 2012 BCCA 239, the Court found no failure to mitigate where the plaintiff was unable to pursue the recommended treatments because of life circumstances that included a pregnancy, the care of small children at home, and her inability to perform the recommended exercises properly without the help of a personal trainer.
[74]         I find similarly that Ms. Rozendaal’s efforts at rehabilitation were reasonable and sincere in her own personal circumstances.

ICBC Expert Evidence Rejected for Advocacy

Written by admin on . Posted in Uncategorized.

Adding to this site’s archived posts highlighting judicial criticism of expert witness advocacy, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, rejecting the opinion of an ICBC retained expert in a chronic pain case.
In this week’s case (Dakin v. Roth) the Plaintiff was injured in three separate collisions.  At trial she introduced evidence from a variety of medical experts including an occupational therapist.  ICBC retained an expert who criticised this evidence.  The Court, however, was ultimately critical of ICBC’s rebuttal expert’s opinion finding it was not “fair, balanced or objective“.  In rejecting the rebuttal evidence Mr. Justice Cole provided the following reasons:
[38]         What is most disturbing about Ms. Taylor’s report is that she describes what she says are discrepancies in Ms. Dakin’s reports to various medical professionals at various points in time. She then lists approximately 1½ pages of these discrepancies and states that it was appropriate for her to make these comments as they were relevant in assessing a client’s reliability. When questioned why she also did not highlight the consistencies within the plaintiff’s reports to other medical professionals, she could not provide a rational answer. I am satisfied that the only reason she provided discrepancies in the plaintiff’s reports to other medical professionals was to attack the plaintiff’s credibility. Her evidence was not fair, balanced or objective, I am satisfied that Ms. Taylor was more of an advocate on behalf of a client. I therefore reject her evidence.

Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, ICBC Thoracic Outlet Syndrome Cases. 63 Comments on Why Labels Don't Matter – More on BC Injury Claims and Non-Pecuniary Damage Assessments

When assessing damages for injuries the BC Supreme Court will not address the injuries as ‘items on a grocery list’.   The exact label attached to an injury is far less important than the ways in which an injury compromises a Plaintiff’s life.  This was highlighted in a recent judgement from the BC Supreme Court, Kamloops Registry.
In the recent decision (McKay v. Powell) the Plaintiff was involved in three rear-end collisions.  As a result she suffered from a chronic pain disorder.  As is often the case, in the course of her lawsuit the Plaintiff was assessed by a variety of physicians who had competing diagnoses for the Plaintiff’s symptoms, namely fibromyalgia vs thoracic outlet syndrome.  Demonstrating that whatever the correct diagnosis, the symptoms were caused by the collision and the plaintiff was entitled to appropriate compensation, Mr. Justice Meiklem provided the following reasons:
[44]         Clearly the cumulative effects of the three accidents in this case have placed Ms. McKay in a position where she has chronic pain disorder as stated by Dr. Mosewich, regardless of the lack of consensus as to whether there is possibly a thoracic outlet syndrome or fibromyalgia in play. No expert has ventured a specific prognosis as to complete resolution of her symptoms. Dr. Wade holds out a hope that further rehabilitation with exercises will reduce her symptoms while participating in daily activities, recreation and occupation. Dr. Mosewich recommended regular exercise and physiotherapy, but recognized a continuing need for pain modulating medication. If Dr. Apel’s diagnosis of fibromyalgia is correct, the plaintiff’s condition will wax and wane, but there will be no full recovery…
[50]         Considering the cited cases, the individual circumstances in the present case, and the factors relevant to assessing this head of damages as set out in Stapley v. Hejslet, 2006 BCCA 34, I assess non-pecuniary damages in the amount of $65,000.

Facebook Photos Found to be "Of Limited Usefulness" In Injury Claim

Written by admin on . Posted in ICBC Privacy Issues, Uncategorized.

Adding to this site’s archived posts addressing Facebook photos in BC personal injury lawsuits, reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding such photos to be ‘of limited usefulness‘ when assessing a chronic soft tissue injury claim.
In today’s case (Dakin v. Roth) the Plaintiff was injured in three collisions.  The Defendant unsuccessfully argued that the Plaintiff  “is not a credible witness”.  In support of this argument the Defendant introduced two years of photos taken from the Plaintiff’s Facebook profile.  In discussing the lack of impact of these photos Mr. Justice Cole provided the following reasons:
[55]         The defendants have entered into evidence photos posted on the plaintiff’s Facebook between 2007 and 2009, which the defendants say are inconsistent with her physical limitations.
[56]         I do not place much weight on those photographs. They are staged, at a party, and taken on holidays. As stated by Mr. Justice Goepel in Guthrie v. Narayan, 2012 BCSC 734 (at para. 30) in respect to Facebook photos:  “Those pictures are of limited usefulness. [The plaintiff] is seeking compensation for what she has lost, not what she can still do.” I agree.
 

Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 55 Comments on Show Your Work! – Medical Opinion Rejected For Failing to Outline Supporting Reasons


Remember grade school math problems?  You needed to not just give your teacher the answer but also show your work.  The conclusion without the supporting paper-trail wouldn’t pass muster in Grade 5.   The same is true with medical opinions in BC injury trials.  It is not enough for a doctor to relate injuries to a collision, the physician must explain the factual basis underlying their opinion.  Failure to do so can result in a Court placing little weight on a physicians opinions.  This was demonstrated in reasons for judgement released recently by the BC Supreme Court.
In the recent case (Perry v. Vargas) the Plaintiff was involved in a 2006 collision.  She sued for damages claiming long-standing injuries with disabling consequences.  The Court accepted the Plaintiff was indeed injured but disagreed with the Plaintiff’s assertion of long-standing disability being related to the crash.
In the course of the trial the Plaintiff introduced evidence from her treating physician supporting her position.  The Court struggled in giving “much weight” to the physician’s opinion, however, noting that the physician provided “no insight into the reasons for (her) conclusion“.  In addressing the lack of reasoning underlying the opinion Mr. Justice Savage provided the following criticism:
[56]         I find it difficult to give much weight to Dr. Tesiorowski’s opinion with respect to causation. Most of the report appears to simply reiterate what she has been told by others. She was not in fact treating Ms. Perry for the complaints until the passing of Dr. Condon. She only did one physical examination. In the report she does not address any of the intervening events.
[57]         In my opinion there is another more fundamental problem with Dr. Tesiorowski’s report. There is no reasoning linking the current complaints with the December 4, 2006 Accident. That is, she states a conclusion as quoted above but provides no insight into the reasons for that conclusion. I examine this matter in greater detail below…
[122]     The report of Dr. Tesiorowski has another important failing. It refers to a history gained from Ms. Perry and others and then simply states a conclusion. To be useful an opinion must be more than a conclusory assertion on causation. In Montreal Light, Heat & Power Co. v. Quebec (Attorney-General) (1908), 41 S.C.R. 116 at 132, Idington J. said “I refuse to accept unless absolutely necessary the mere ipse dixit of any expert when presented for my acceptance merely as an act of faith, and without the aid of such reasons as his reasoning power, or means of, and result of the use of means of, observations may have developed”.
[123]     The same kind of concern is noted by Binnie J., speaking for the court in R. v. J.-L.J., 2000 SCC 51 at para. 56, [2000] 2 S.C.R. 600. The opinion must assist the trier of fact to form an independent conclusion by “an act of informed judgment, not an act of faith”:
56          In Mohan , Sopinka J. held that the expert evidence in question had to be more than merely helpful. He required that the expert opinion be necessary “in the sense that it provide information, which is likely to be outside the experience and knowledge of a judge or jury, … the evidence must be necessary to enable the trier of fact to appreciate the matters in issue due to their technical nature” (p. 23). In Béland , supra , McIntyre J., speaking about the inadmissibility of a polygraph test, cited at p. 415 Davie v. Edinburgh Magistrates, [1953] S.C. 34 (Scotland Ct. Sess.) , at p. 40, on the role of expert witnesses where Lord Cooper said:
Their duty is to furnish the Judge or jury with the necessary scientific criteria for testing the accuracy of their conclusions, so as to enable the Judge or jury to form their own independent judgment by the application of these criteria to the facts proved in evidence. [Emphasis added.]
The purpose of expert evidence is thus to assist the trier of fact by providing special knowledge that the ordinary person would not know. Its purpose is not to substitute the expert for the trier of fact. What is asked of the trier of fact is an act of informed judgment, not an act of faith.
[124]     As there is no reasoning linking the facts referenced in the medical report with the conclusory assertion on causation, I am unable to form an independent conclusion from this opinion. To accept the opinion would simply be a leap of faith, applying the logical fallacy of ipse dixit, in this context, “because she said it”.
[125]     For all of these reasons Dr. Tesiorowski’s opinion is of little assistance to the court.

"Compelling Facts and Circumstances" Required to Depart from Rule 15 Pre-Trial Settlement Cap

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 15, Uncategorized.

Further to my previous posts on this topic, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, confirming that when a Rule 15 matter settles pre-trial and the settlement agreement incorporates costs, these should be assessed at $6,500 unless there are compelling facts and circumstances.
In the recent case (Ostadsaraie v. Shokri) the Plaintiff settled his claim 55 days prior to the scheduled trial and also prior to his Trial Management Conference.   The Plaintiff sought $6,500 in costs and Registrar Cameron agreed this amount was appropriate   After canvassing the relevant authorities the Court provided the following reasons:
[8]             In this case, Ms Neathway had done a substantial amount of preparation and delivered a settlement offer that resulted in a settlement of the case some 55 days before trial. There was a housekeeping matter left to be done, a trial management conference – but given the settlement, it did not occur.
[9]             Ms Neathway had delivered all of her expert reports and had prepared and completed all of the discovery in readiness for trial. She was frank to say that she would have needed to interview again one or more of the witnesses that would be called at trial and of course complete the final preparations for her client to give his evidence at trial. Nonetheless, a substantial amount of the preparation had in fact been completed by the time the settlement was made and in the circumstances it is appropriate to award the plaintiff the full amount of the cap…

Doing it Yourself – Suing for Accelerated Vehicle Depreciation in BC Small Claims Court

Written by admin on . Posted in Uncategorized.


As I’ve previously written, when a vehicle is involved in a crash and is then repaired it is generally worth less than it would be had it not been damaged.  The reason for this is quite simple, when a buyer is looking to purchase a used vehicle, those that have previously been damaged and repaired carry a stigma.  This stigma generally results in a lower resale value.   You can click here to watch CBC’s Marketplace investigation highlighting this reality.
Although Defendants often are reluctant to acknowledge such a loss, the law in BC recognizes this lost value.  If your vehicle was damaged due the the actions of others you can sue to recover your damages for “accelerated depreciation“.
Often times the cost of hiring a lawyer to advance an accelerated depreciation claim can outweigh the amount of the recovery making it an unrealistic option.  So what can you do?
In BC the Small Claims Court has a current limit of $25,000.   This ceiling is adequate to cover all but the most serious of accelerated depreciation claims.  If you did not suffer a personal injury in your crash and your only loss is accelerated vehicle depreciaton bringing a self represented action in Small Claims Court is a viable option.
The Provincial Court has a useful website explaining the basics of starting a lawsuit.  You can click here to access information about filing your claim.
In addition to this, here are some of the key points to be aware of before getting started:
1.  The claim needs to be against the at-fault party.  The insurance company of the at-fault driver (such as ICBC) is the wrong party to sue.  Typically the action is brought against the driver of the at-fault vehicle along with the registered owner who is ‘vicariously liable‘ for damage caused by people who operate their vehicle with their consent.
2.  The Notice of Claim must describe a ’cause of action’.  In other words you have to sue for a recognized wrong.  Typically car crash   cases deal with ‘negligence’ that is, the at fault motorist caused the crash by careless driving.
3.  The resulting harm needs to be caused by the negligent action.  The Pleadings should reflect that the accelerated depreciation was caused as a result of the at-fault driving of the Defendant.
4.  The loss needs to be proven with admissible evidence.  It is not good enough to baldly suggest that a vehicle sustained an accelerated depreciation.  Some vehicles do not sustain any loss in value following a collision.  It is a good idea to retain a qualified expert to examine the vehicle, the repairs done and to then comment on what the vehicle’s lost value is compared to its natural depreciation at the time of the collision.  The expert should be prepared to come to court to testify as to his opinion and the expert’s report needs to be served in compliance with the Rules of Court.   While it does cost money to retain an expert it is worth keeping in mind that the Small Claims Court does have the discretion to order reimbursement of reasonable disbursements if the claim is successful making such expenses a worthwhile investment.
5.  You must bring your lawsuit in time.  If you wait beyond the applicable limitation period before starting your lawsuit the claim will be dismissed.
6.  If you have personal injuries but fail to sue for these and only claim for accelerated depreciation you may be barred from bringing a personal injury action later.  It is important to claim damages for all losses resulting from the crash.
 
 

More On Discovery Evidence at Trial and The Adverse Party Limitation

Written by admin on . Posted in BCSC Civil Rule 12, Civil Procedure. 102 Comments on More On Discovery Evidence at Trial and The Adverse Party Limitation

As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages.  The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party.  In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant.  In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
[13] The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
[14] Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
[15] The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants. 

Is Tort Reform Needed To Allow Proper Crime Victim Compensation?

Written by admin on . Posted in Tort Reform, Uncategorized.

I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm.  The reason being that when people are injured through negligence defendants are often insured to pay for the damages.  When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.
Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again.  In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“.  The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and) recurrence of a previously-suffered Major Depressive Disorder“.
The Defendant was criminally convicted for the assault.  The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000.   Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment.   If that is the case it is worth repeating my views about whether this issue should be reviewed by the legislature to create a meaningful compensation system for victims of crime who pursue ‘dry’ damages through the tort system.  For the sake of convenience here were my previous thoughts:
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgements.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.
Comments and feedback are welcome.
 

176,000 Thank-You's, A Clawbie and a Dip in a Canadian Lake

Written by admin on . Posted in Uncategorized. 2 Comments on 176,000 Thank-You's, A Clawbie and a Dip in a Canadian Lake

Well another year is in the bag.  I celebrate this time of year with a traditional dip in a Canadian Lake.  I’ve been lucky enough to have my eldest son join me in this nonsensical tradition for the past three years running.  So here is this year’s photo evidence of this fine feat.

This time of year the Canadian Law Blog Awards are also handed out.  I was honoured to have this blog rank as runner-up for the Fodden Award for Best Canadian Blog.
Thank you to all who nominated this blog and to Steve Matthews, Simon Fodden and Jordan Furlong for your kind words.  I should note that the Clawbies are far less about winning than they are about the nomination process.   Many fine blogs made the final cut this year and I encourage you to check them all out here.
Lastly, while I don’t closely monitor analytics,  this time of year I like to check in to see what kind of an audience my blog has drawn.  An astounding 173,962 people have taken the time visit this blog in 2012.

 
Considering the very narrow focus of this blog I am amazed by this number.  A big thank you to all of you.  2013 will be the 6th Calendar Year in which I author this blog.  I intend to put in another solid year and hope you continue to visit this humble slice of the blogosphere.
Happy and prosperous 2013 everyone.  Now go jump in a lake!