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Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial

Written by admin on . Posted in BCSC Civil Rule 11, Civil Procedure, independent medical exams. 54 Comments on Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial


In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis.  This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision.  She sued for damages and proceeded to jury trial.  In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries.  Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert.  In doing so the Court provided the following reasons:
[5]  Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular  in the process of forming diagnosis and prognosis.  If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
[6]  The chiropractor will testify and will be subject to cross-examination…
[8]  The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC).  At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
[9]  Here, I think the chiropractor does offer something towards this end.  Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice.  I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
[10]  On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.

Defence Medico-Legal "Vacuum" Defeats Post Trial Costs Application

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 46 Comments on Defence Medico-Legal "Vacuum" Defeats Post Trial Costs Application

UPDATE January 28, 2014 – the BC Court of Appeal overturned the below result in reasons for judgement released today
____________________________________________________
In an interesting demonstration of the BC Supreme Court’s discretion relating to costs awards following trials where formal settlement offers were made, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to award ICBC costs where a Jury’s damages amounted to less than 10% of ICBC’s best formal settlement offer.
In the recent case (Paskall v. Scheithauer) the Plaintiff was injured in a 2005 motor vehicle collision.  Fault and damages were at issue.  Prior to trial ICBC tabled a $700,000 formal settlement offer.  The Plaintiff proceeded to trial and sought damages of over $2 million.  After a liability split of 80/20 in the Plaintiff’s favour the damages awarded by the jury came to just over $65,000.
Having enjoyed substantial financial victory as compared to their pre-trial offer, ICBC sought post offer costs and disbursements arguing their offer ‘ought to have been accepted’.  Mr. Justice Smith disagreed finding, interestingly,  that the the Defendant’s failure obtain medico-legal reports despite having the Plaintiff attend two independent medico-legal assessments created an evidentiary vacuum making it impossible for the Plaintiff to conclude that the formal offer was one that reasonably ought to have been accepted.  In dismissing ICBC’s sought costs the Court provided the following reasons:
[32]         In order to determine whether an offer is reasonable and ought to be accepted, the plaintiff must be able to consider it in relation to the evidence expected at trial and the apparent range of possible outcomes. In a personal injury case, that exercise usually includes consideration of conflicting medical opinions, along with the possibility and likely consequences of the court preferring certain opinions over others. Plaintiff’s counsel who is relying on an opinion from Dr. X can advise his or her client of the reduction in damages that may result from the court rejecting the evidence of Dr. X and accepting the opinion of Dr. Y that is being relied on by the defendant.
[33]         In this case, the evidence relied on by the plaintiff included opinions of a neuroradiologist, a neuropsychologist, a psychiatrist, an otolaryngologist and two physiatrists. The only experts put forward by the defendant on the question of damages were the occupational therapist dealing with cost of future care and the economist. The defendant served no medical expert opinions, although the plaintiff had attended two independent medical examinations at the request of defence counsel.
[34]         The onus of proof at trial is on the plaintiff. The defendant is under no obligation to produce medical evidence and may rely entirely on cross-examination of the plaintiff and the plaintiff’s medical experts to support an argument that the plaintiff has failed to prove damages. That is what defence counsel chose to do in this case, apparently with great success.
[35]         But the onus of proof at trial is not necessarily relevant to the question of whether an offer made before trial “had some relationship to the claim” or “could be easily evaluated”. In choosing to defend this case in the way he did, the defendant also chose not to provide the plaintiff with evidence on which she could judge the reasonableness of the offers to settle. With the plaintiff’s medical reports in hand, and in the absence of contrary medical opinions, I do not see how reasonable counsel could have recommended acceptance of either of the defendant’s offers or justified such a recommendation to the plaintiff.
[36]         A second factor for consideration set out in R. 9-1(6) is the relationship between the offer and the final judgment. However, the court cautioned against putting too much weight on this factor in cases involving jury trials, given the unpredictability of jury awards: Smagh v Bumbrah, 2009 BCSC 623 at paras 13-14.
[37]         In this case, I find the consideration under R. 9-1(6)(a) to be determinative. I am not only unable to say the offers ought reasonably to have been accepted, but I find that they could not reasonably have been accepted in the context of the evidentiary vacuum in which they were presented. I conclude the plaintiff is entitled to her costs as if the offers had not been made.

The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials, Uncategorized. 94 Comments on The Answer is Discretion…Jury Strike Application Fails in Case with 32 Expert Reports

Last month I highlighted reasons for judgement where a jury strike application succeeded in a personal injury trial with 30 expert reports was deemed “too complex” for that mode of trial.  In a good illustration that there is no certain outcome when it comes to discretionary orders, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing a jury strike application in a case with fairly similar facts.
In this week’s case (Henshall v. Plona) the Plaintiff alleged brain injury from a 2005 collision.  Liability was disputed and further the defendant argued that “credibility of the plaintiff is a key issue at trial. The defendants say that the evidence reveals significant conflicts in the evidence, including the plaintiff’s failure to disclose his significant pre-accident history of head injuries and drug and alcohol use.”
The matter was set for a 25 day trial which was combined with two other injury claims the Plaintiff was advancing from subsequent collisions.   In the course of the lawsuit a total of 32 expert reports were obtained by the litigants.  The Plaintiff argued the sheer volume of evidence would “overwhelm a jury“.  Master Taylor disagreed and dismissed the Plaintiff’s application concluding as follows:
[27]         Given the particular facts of this case, I have concluded that the applicant has failed to satisfy me that the jury notice should be struck based on the grounds articulated in R. 12-6(5)(a), either alone or collectively. Accordingly, the application is dismissed with costs to the defendants.
 

$25,000 Non-Pecuniary Assessment for STI's With Full Recovery Within Two Years

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Adding to this site’s archived caselaw for soft tissue injury compensation, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, assessing damages for soft tissue injuries which “achieved full physical recovery no later than two years after the accident“.
In last week’s case (Nemoto v. Phagura) the Plaintiff, who recently moved to Canada from Japan, was injured in a 2008 collision.   She was 13 at the time.  Fault was admitted by the offending motorist.  She suffered soft tissue injuries to her neck and lower back.   She also experienced anxiety while riding in a vehicle subsequent to the collision.  In assessing non-pecuniary damages at $25,000 Mr. Justice Smith provided the following reasons:
[16]         On the evidence before me, I find that the plaintiff suffered significant pain and limitations from the date of the accident until approximately the end of 2008, with intermittent, lingering difficulties for at least another year, but had achieved full physical recovery no later than two years after the accident. The physical difficulties in the immediate post-accident period were likely more difficult for the plaintiff to deal with than might otherwise have been the case because she was, at the same time, adjusting to a new school and life in a new country.
[17]         I also find that the plaintiff experienced severe anxiety while riding in cars for approximately two years and that anxiety still affects her efforts to learn to drive. For purposes of assessing damages, it does not matter that this anxiety may, to some extent, be influenced by the fact that her mother has similar fears and anxiety flowing from the same accident. In any event, there is no reason to believe this will be a long-term problem.
[18]         The plaintiff is in Canada on a student visa, which does not permit her to work, so there is no claim for income loss. I find there is no need for any future care arising from the accident…
[22]         In all the circumstances, I assess the infant plaintiff Rui Nemoto’s non-pecuniary damages at $25,000…

It Is Not Appropriate to Order a Medical Exam By An Expert Who previously "Bordered on Advocacy"

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams. 46 Comments on It Is Not Appropriate to Order a Medical Exam By An Expert Who previously "Bordered on Advocacy"

In my continued efforts to track judicial comments addressing expert witness advocacy, reasons for judgement were released last week by the BC Supreme Court, Cranbrook Registry, dismissing an application for a defence medical exam where the proposed examiner wrote a previous report that, in the Court’s view, “border(ed) on advocacy“.
In last week’s case (Moll v. Parmar) the Defendant sought to have the Plaintiff examined by a neuropsychologist.  Prior to the proposed exam the doctor wrote a “very vigorous critique” relating to the Plaintiff’s expert’s conclusions.  The Court held that, in such circumstances, it is “not appropriate for the court to order a medical examination…by an expert who has previously taken such a strong stance“.
In dismissing this application Mr. Justice Meiklem provided the following reasons:
[13]         Turning first to the Master’s errors alleged by the appellant, I initially gave rather short shrift to Mr. Harris’ submission that Drs. Craig and Williams had been recruited as advocates for the defence by virtue of the nature of the defence requests to them and the nature and content of their reports, that they should be viewed as lacking the necessary objectivity to warrant being appointed by the court to conduct IMEs of the plaintiff. After considering the retainer letters and the reports of Drs. Williams and Craig, I see considerable merit in the appellant’s argument with respect to Dr. Williams’ compromised objectivity. The circumstances in respect of Dr. Craig’s report are somewhat different.
[14]         The appellant’s concern was not only the advocacy bias apprehended by the plaintiff, but also the bias concerning the plaintiff’s condition that was already demonstrated by the roles these experts were retained for and the reports they had already delivered. He considered it highly improbable and purely theoretical that either of these specialists would be able to change any previously expressed views after their examinations of the plaintiff.
[15]         Dr. Williams’ report emanated from a retainer letter wherein the pertinent paragraph stated simply that Mr. Moll was advancing a claim for a head injury in a highway collision and then stated: “I ask that you please kindly review the enclosed report of Dr. Jeffrey Martzke dated May 1, 2012, together with the enclosed documentation set out in the attached schedule “A”, with a view to discussing Mr. Moll’s claim with me.” The letter promised to forward Dr. Martzke’s raw test data, which was forwarded in due course and reviewed by Dr. Williams.
[16]         Dr. Williams described the purpose of his report as responding to the reports of Dr. Martzke and Dr. Wallace (the plaintiff’s vocational consultant) and he said he limited his comments to aspects pertaining to the methods, procedures and process of the reports, as well as the sufficiency of the conclusions recommendations or diagnoses of Drs. Martzke and Wallace.
[17]         Dr. Williams’ report is, however, a very rigorous critique of Dr. Martzke’s methods and testing, as well as his conclusions, and in my view does at least border on advocacy, as argued by Mr. Harris. Dr. Williams’ criticisms of Dr. Martzke’s report and findings may well be found to be completely correct, and my comments will not fetter the trial judge’s rulings if the report is tendered, but I do not think it is appropriate for the court to order a medical examination of a plaintiff by an expert who has previously taken such a strong stance in accepting the role as a reviewer of a previous examiner’s report, particularly in view of the specific provisions of Rule 11-2(1) of the Civil Rules.

Court Holds Diminished Capacity To Care For Loved Ones Not Forseeable Unless Care "taking place or contemplated" at the time of the tort

Written by admin on . Posted in Cost of Future Care Cases.

It is a well recognized principle that if a spouse needs to provide extraordinary services in caring for an injured loved one harmed by the negligence of others that this time can be compensated as an ‘in trust claim’ in the Plaintiff’s personal injury action.
What if the tables are turned, however, and the Plaintiff cares for a loved one but due to injuries to the Plaintiff he/she becomes unable to provide the care they otherwise would for their spouse?  The BC Court of Appeal released reasons for judgement, in a two one split, finding that such damages for such a loss are not ‘foreseeable’ unless they are taking place or contemplated at the time of the tort.
In this week’s case (Milliken v. Rowe) the Plaintiff was injured in a 2007 collision.   These had long term limiting consequences.  Subsequent to the collision the Plaintiff’s husband became ill.  The evidence proved that but for the injuries the Plaintiff would have cared for her husband.  The Court compensated the Plaintiff $30,000 for this loss.  In overturning this award, the BC Court of Appeal held it was not a foreseeable loss as this care was not “taking place or contemplated” at the time of the crash.  The majority provided the following reasons:
[31]         With respect, I disagree that the loss in this case reasonably could be foreseeable even under that standard. At its core, the award here is based merely on the fact that, at the time of the tort, the respondent and her husband were married with a possibility that at some future date the husband might require care of some kind. This did not make such care reasonably foreseeable at law. It might never occur: the respondent could die before care was required; the need for care might never arise; her surgery could eliminate the problem or diminish it significantly; or, her full-time employment may have eliminated or diminished her ability to provide care regardless of the accident. While plainly foreseeable as a theoretical, factual outcome in hindsight, this possibility was not a “real risk” in “the mind of a reasonable man in the position of the defendan[t]”.
[32]         In my view, the costs associated with caring for the respondent’s husband are too remote to be recoverable. As aptly stated by the Chief Justice in Mustapha, recoverability is based on reasonable foresight, not insurance.
[33]         The appellant also argued that even if damages were recoverable for the respondent’s diminished ability to care for her husband, as not too remote, as they were in Lynn, they would be recoverable under the heading of non-pecuniary damages and not as damages for loss of future care. I need not address this issue and leave it for a case in which it is engaged.
[34]         In my view, costs arising from the diminished ability to care for a disabled spouse of a plaintiff where no such care is required or contemplated at the time of the tort are not foreseeable at law; they are too remote.
[35]         I would allow this appeal and reduce the award of damages for the costs of future care by $30,000.
The decision also includes a well reasoned dissenting decision by Mr. Justice Donald which can be found starting at paragraph 36.
 

Non-Pecuniary Damages Discussed for Physical Injuries Complicated by Pre-Existing Psychological Issues

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

It is a well worn principle that you take your victim as you find them when assessing damages for personal injuries in BC.  It is equally true that a defendant is not responsible for compensating an injured party beyond the injuries that they have caused.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with these principles in the face of chronic pre-existing psychological injuries.
In this week’s case (Carson v. Henyecz) the Plaintiff was injured after being struck by a vehicle being driven by her mother.  The Plaintiff sustained injuries that “essentially recovered…within a year of the accident”.  The Plaintiff, however, had a pre-existing “borderline personality disorder” and this caused for a prolonged recovery and with other complicating factors.  The Court grappled with this pre-existing injury, its effect on recovery and further on the fact that the Plaintiff’s symptoms at the point of trial would be largely similar even absent the collision.  In assessing non-pecuniary damages at $90,000 Mr. Justice Powers provided the following reasons:
[111]     I find that Ms. Carson had essentially recovered from her physical injuries within a year of the accident. I accept that she continued to have some pain for at least another year and still occasionally suffers pain from the injury. However, from a physical point of view she has made an excellent recovery. I am not satisfied that the shoulder complaints relate to the accident or were caused by the accident. In November of 2008, when she began to notice shoulder pain, the doctor’s evidence indicates that she had a full range of motion and was quite strong.
[112]     I do find that her pre-existing psychological or borderline personality disorder was a factor in the impact this accident had on her. These injuries and the circumstances of the accident had a greater impact on Ms. Carson than they would on somebody without her pre-existing psychological problems.
[113]     I also find that the necessity for narcotic medication to deal with the pain immediately after the accident and for at least a short time after also complicated and delayed Ms. Carson’s efforts to free herself from her prior addiction and abuse of pain medication. I find that the psychological impact of this accident also complicated her efforts to free herself from the pain medication and made it more difficult for her to do so.
[114]     However, the accident is not the cause of Ms. Carson’s ongoing problems. I am satisfied her ongoing problems, both psychological and physical, are as a result of her prior psychological problems. Given her complicated psychological history, I find that the accident has become the focus of and not the cause of her complaints. It is difficult to be precise about when the accident was no longer a significant contributing cause to her complaints. However, I am satisfied that within two to three years of the accident, and certainly by the time of the trial, the accident was no longer a significant contributing cause. Similar to the case of Wilson and the cases cited in that decision that I have referred to in paras. 105 and 106 of my reasons, Ms. Carson’s pre-existing condition was so dominant in her life and, based on the evidence I have heard, would have continued to dominate her life whether this accident occurred or not. Essentially she appears to be back to her pre-accident condition and it cannot be said that the accident is the cause of her present condition.
[115]     In considering all of the above, I find that the appropriate damage award for non-pecuniary damages is $90,000.00.

Plaintiff Stripped of Post Offer Costs and Disbursements For Failing to Beat Formal ICBC Settlement Offer

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

In my continued efforts to track the judicial discretion of costs awards following trials with formal settlement offers in place, reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, addressing costs consequences were a jury award was some 25% of ICBC’s best pre-trial formal settlement offer.
In the recent case (Wafler v. Trinh) the Plaintiff was injured in a 2005 collision.  Prior to trial ICBC made three formal settlement offers, the final being $222,346.  The Plaintiff rejected this offer and proceeded to trial.  A jury assessed damages at $70,000 and after appropriate deductions this resulted in judgement of over $53,000.  ICBC applied for post offer costs.  Mr. Justice Voith did not agree that such a result was appropriate but did strip the Plaintiff of post offer costs and disbursements.  Given that the trial lasted 10 days this is a significant financial consequence.  In finding this appropriate Mr. Justice Voith provided the following reasons:
[41]         There should be some consequence attached to the plaintiff’s failure to accept the defendant’s third offer of settlement. Having weighed the factors I have identified, I consider that an appropriate result would be to give the plaintiff his costs, including his disbursements, up to December 21, 2011. Each party is to bear their own costs and disbursements after that date. Though every case turns on its own facts and circumstances, the foregoing result aligns with the conclusions arrived at in each of Lumanlan and Khunkhun.

$90,000 Non-Pecuniary Assessment for Onset of Pain in Pre-Existing Spinal Degeneration

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a common injury sustained in a motor vehicle collision; the onset of symptoms in pre-existing but otherwise asymptomatic spinal degeneration.
In this week’s case (Johnson v. Kitchener) the Plaintiff was involved in two collisions, the first in 2007 where he was rear-ended by a tractor trailer, the second in 2008 which aggravated in the injuries from the first crash.  Prior to the first collision the Plaintiff had “significant degeneration” in his neck and less severe degeneration in the rest of his spine.  Despite this condition the Plaintiff was asymptomatic.  The collisions caused this condition to become painful.  The court found that while the neck symptoms likely would have developed at some point in time absent the collision, the back would have remained asymptomatic absent trauma.  In assessing non-pecuniary damages at $90,000 (prior to making a modest deduction for the likelihood of neck symptoms in any event) Madam Justice Gerow provided the following reasons:
[58] In my view, the evidence establishes the probable cause of Mr. Johnson’s ongoing neck, upper back and lower back pain is that the injuries he sustained in the 2007 accident, and the 2008 accident to a lesser extent, exacerbated his pre-existing asymptomatic degenerative disc disease. While there was risk to the degenerative disc disease in his neck becoming symptomatic, the medical evidence was that the lower back would likely not have become symptomatic absent some trauma.
[59] Dr. Travlos’ evidence was that he did not know exactly when the neck would become symptomatic and could not give an opinion regarding the severity of any symptoms. It is clear from the expert evidence that the 2007 accident caused a serious injury to the neck which has caused pain and suffering sooner, more frequently and to a notably greater degree.
[60] It is apparent from the evidence that Mr. Johnson has returned to his sporting activities and he has a strong work ethic. He is not a man to sit around and he continues to be active despite the pain it causes him. Mr. Johnson’s evidence is that he will continue to work at Ocean Concrete until he finds something more suitable despite the increase in symptoms he has from the physical aspects of the job. As well, he will continue to engage in whatever sports he can, knowing he will pay for it.
[61] Mr. Johnson’s evidence is consistent with the medical opinions. For example, Dr. Froh’s opinion is that Mr. Johnson will not harm himself with high demand activities; however, it will likely result in increased pain and symptoms.
[62] In my opinion, Mr. Johnson’s neck symptoms fall within the crumbling skull rule enunciated in Athey, and any award must reflect that. However, I am of the view, the defendants are liable for his lower back symptoms even though they may be more than severe than expected due to his pre-existing condition. The evidence of the experts is that many individuals have degeneration in their spines without any symptoms and that the degeneration in Mr. Johnson’s lower back was similar to other individuals of his age. There is no evidence that his lower back would have become symptomatic absent the 2007 accident. Accordingly I have concluded that his lower back symptoms fall within the thin skull rule enunciated in Athey. ..
[68] Having considered the extent of the injuries, the fact that the symptoms are ongoing five years after the accident with little improvement, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $90,000 if the accidents were the only cause of Mr. Johnson’s ongoing symptoms. However, given the evidence that Mr. Johnson was likely to have suffered some neck symptoms from his degenerative condition within 3 to 10 years, that award should be reduced by 10% to $81,000.

My 2012 Clawbies Nominations

Written by admin on . Posted in Uncategorized. 100 Comments on My 2012 Clawbies Nominations


It’s that time of year again.  The Canadian Law Blog Awards (the Clawbies), are awarded once a year to recognize outstanding Canadian legal blogs.  The nomination process involves peer endorsement and from there a select number of blogs are chosen for recognition.
The decision makers include Steve Matthews, author of the Law Firm Web Strategy Blog who, if he keeps up the good work, may just give law firm marketers a good name.  Jordan Furlong of Law 21, who has no shortage of wisdom for lawyers reminding us that we must provide our services in a competitive and beneficial way otherwise learn that we may not be as irreplaceable as we may think.  And last but not least, Simon Fodden who is the godfather of the most successful Canadian legal blog, Slaw.
My first nomination is not a blog.  So much for following directions.   Eugene Meehan’s Supreme Court of Canada newsletter is the source to follow for keeping appraised of all developments at the Supreme Court of Canada.  You can find it and subscribe to it here.  I figure it being a newsletter instead of a blog is a mere formality the powers that be should overlook.
Next, sticking in my neck of the woods, I’d like to nominate Dye and Durhams’ BC Law Watch for providing current, useful information  on all things law related in BC.
Lastly David Bilinsky, the man who brought me into the world of Blawgging deserves yet another nod.  It would be a shame if his streak of 5 consecutive years of Clawbies recognition came to an end.
OK, lastly for a second time, another shout out to the always outspoken Antonin Pribetic for not only his comprehensive posts but for never  being shy of picking a fight in his Trial Warrior Blog and advancing clear and authoritative positions in a sometimes bland ‘happysphere‘.