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Medical Record Relevance To Be Determined on Entry by Entry Basis

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


Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, finding that in the context of personal injury claims, the relevance of clinical records should be determined on an entry by entry basis.
In last week’s case (Hyvarinen v. Burdett) the Plaintiff claimed permanent physical disability as a result of a 2008 collision.  In the course of the litigation the Defendant requested various records the Plaintiff refused to produce.  A court application was brought resulting in mixed success with some of the withheld documents being ordered to be produced.  In adjudicating the matter Master MacNaughton provided the following sensible reasons addressing the vetting of irrelevent medical records:

[18] While I accept that when a document is produced by a party, it should generally be produced in its entirety, the exception is where a party is able to establish a good reason for a document not to be produced. In North American Trust Co. v. Mercer International Inc. (2000) 71 B.C.L.R. (3d) 73 (BCSC), Justice Lowry, then of this court, reiterated the general principle but said:

…But where what is clearly not relevant is by its nature such that there is good reason why it should not be disclosed, a litigant may be excused from having to make a disclosure that will in no way serve to resolve the issues. In controlling its process, the court will not permit one party to take unfair advantage or to create undue embarrassment by requiring another to disclose part of a document that could cause considerable harm but serve no legitimate purposes in resolving the issues. (para. 13)

[19] In this case, there are two reasons why the general rule about redacted documents should not apply. The first is because the documents sought in unredacted form are not, although generally listed as such, single documents. Rather, they are a series of records compiled over time from a number of interactions with the plaintiff. These records should not be approached globally as if they were a single document. Each entry requires a separate analysis as to whether it may prove or disprove a material fact or relate to a matter in a question in this action.

[20] Second, and importantly in this case, the court must be careful not to unnecessarily infringe on the plaintiff’s privacy interests. Recently, in Kaladjian v. Jose, 2012 BCSC 357, Justice Davies reiterated the importance of a plaintiff’s privacy interests in a personal injury action. He said:

Every individual’s health and the medical treatment of it is a personal and private matter that should not be lightly interfered with. In today’s world of medical specialization, disclosure of even the name of a medical professional consulted by an individual for reasons wholly unrelated to a defence plea of a prior existing condition is an unwarranted and unnecessary invasion of privacy. (para. 75)

$90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

Written by admin on . Posted in ICBC Hip Injury Cases. 118 Comments on $90,000 Non-Pecuniary Assessment for Labral Tear Requiring Surgery

Reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, assessing damages for a hip injury sustained in a vehicle collision.
In yesterday’s case (Combs v. Moorman) the Plaintiff was involved in an “extensive” rear end collision in 2007.   The Defendant was found wholly at fault for the crash.  The Plaintiff, a 38 year old massage therapist, suffered a labral tear (a tear of the cartilage cushioning the hip socket).

This injury caused ongoing problems and needed future surgical intervention.  It caused limits in the Plaintiff’s domestic and vocational abilities.  In assessing non-pecuniary damages at $90,000 Madam Justice Humphries provided the following reasons:

[19] Pain in her left hip is her primary concern presently.  She says it is very painful and affects every treatment she gives.  The pain makes her put her weight on her right leg, and consequently her right leg has begun to hurt as well.  After an MRI, it was determined that she has a labral tear, that is a tear in the material cushioning her hip socket.  A bone scan showed some tenderness on the left trochanter, that is the top of the femur.

[20] Dr. Smit, Ms. Combs’ treating orthopaedic surgeon, recommended freezing injections into the hip and the trochanter respectively as a diagnostic device to determine where the pain was coming from.  That is, if one area were frozen and the pain continued, it would show that the source was the other area.  Dr. Smit said the injections give temporary relief, but symptoms would return in 6 – 8 weeks.  He said in “a distinct minority” of cases the pain does not return.  Ms. Combs declined this procedure…

[27] Ms. Combs was a straightforward witness.  She is obviously used to coping with life in a businesslike manner and does what she has to do.  She works hard, runs a successful clinic, and looks after two children and the home with the help of her mother, her mother-in-law, and her husband.

[28] Ms. Combs suffered fairly extensive injuries in this accident, some of which are permanent.  The hematoma in her knee and the damage to her finger, though not interfering with her activities, will not improve.  She deals with daily neck, back and hip pain and has done so for four years.  While surgery will likely improve her hip pain, it is not likely that her neck and back pain will resolve.  Her prognosis is poor.

[29] She still works long hours, but only with pain, and foregoes activities she used to enjoy in order to work those hours.  Her social life has been impacted because she is too tired to participate.  She cannot sit up on the bed and read to her daughter because of her back pain…

[33] I am of the view that it would have been helpful for Ms. Combs to have the injections for diagnostic purposes and for temporary relief.  Her failure to do so was unreasonable, but although some of her pain may have been relieved temporarily by this procedure and diagnosis of the source of the pain would likely have been facilitated, failure to undergo this procedure does not affect any long term outcome.  Dr. Smit said the cases in which pain does not return after the injections are “a distinct minority”.  In any event, Ms. Combs must still face hip surgery, and according to the medical evidence, delay in having the surgery does not affect its success rate.  Her refusal to undergo months of recovery from surgery while running a busy practice and taking care of young children is simply a matter of weighing how much pain she could cope with and still carry on.  I cannot see her refusal to have the surgery until now as unreasonable.

[34] Obviously each case has distinctive facts, and it is often difficult to reconcile them as awards for pain and suffering are inherently individual.  The cases cited by the plaintiff involve considerably more severe and wide ranging symptoms that Ms. Combs has.  The cases cited by the Third Party involve symptoms that resolved faster than Ms. Combs’ have.  She is not a complainer, but four years post accident, she is still coping daily with its effects and now has to undergo the surgery and recovery time.  The effect of the chance of the early onset of arthritis in the distant future is not great, given the scant evidence that it is likely to occur.

[35] Considering the evidence and the cases cited to me, I set non-pecuniary loss at $90,000.

The Mystery of the Vanishing Blog Posts…

Written by admin on . Posted in Uncategorized.

If you regularly follow this blog you may have noticed my burst of activity today is nothing more than a re-posting of a handful of articles I published earlier this week.  Apparently my web hosting company experienced  a server problem resulting in several lost posts.  Fortunately, thanks to some quick help from Steve Matthews of Stem Legal I was able to retrieve (and repost) these lost articles.
To my frequent readers, sorry for the re-posts.  To Steve, thank you!

Vancouver Jury Awards Canadian National Boxing Champion $1,023,000 In ICBC Claim

Written by admin on . Posted in ICBC Hand Injury Cases, Jury Trials.

While an injured hand would effect most individuals in a negative fashion the consequences can be far more severe depending on the nature of your occupation.  Illustrating that an injury’s valuation largely depends on the unique circumstances of a Plaintiff, a recent Vancouver Jury verdict valued a Boxer’s ICBC claim involving a right hand injury at just over $1,000,000.

In the recent case (Albert v. Politano) the Plaintiff Jegbefumere ‘Bone’ Albert was involved in a 2008 collision.  He was a professional cruiser weight boxer at the time with a 4-0 professional record and a 251-3 amateur record.  The collision caused a chronic right hand injury.  This injury flared with training/fighting.  The Plaintiff had 3 more professional contests post crash and despite his hand injury he won all these contests.  The chronic nature of the injury, however, interfered with his abilities and required the Plaintiff to take early retirement in 2009 at the age of 29.

After a 5 day trial before Mr. Justice Greyell the Vancouver Jury awarded the Plaintiff just over $1 million for his losses including the following damages:

Non-Pecuniary Damages: $125,000

Past Diminished Earning Capacity: $60,000

Future Diminished Earning Capacity: $868,000

As with all Jury verdicts, there are no ‘reasons for judgement’ to publish.  I would like to thank Vancouver lawyer John Cameron for sharing this result with me for publication on this blog.

50/50 Liability Split For Intersection Crash On Amber Light

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

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, addressing the issue of fault for an intersection crash involving a left hand turning vehicle and a through vehicle on an amber light.

In yesterday’s case (Tan v. Nenadic) the Plaintiff was a passenger on a motorcycle.  There were two designated turn lanes and two through lanes in their direction of travel.  They were travelling in the right hand through lane.  As they approached an intersection their light turned amber.  Vehicles in the lane to their left stopped but the motorcycle continued into the intersection.  At the same time an on-coming BMW was committing a left hand turn resulting in collision.  Mr. Justice Wong found both driver’s equally to blame.  In doing so the Court provided the following reasons:

] Mr. Kwong was driving a black 2001 BMW 330Ci convertible automobile eastbound on 49th Avenue, intending to turn left to go northbound on Boundary to attend his place of employment.  He had entered the intersection, stopped to wait for oncoming traffic to clear, before commencing his left turn.  Oncoming westbound traffic in the left travelling lane came to a stop when the light changed to amber.  It is unclear how many stopped vehicles were in that lane, but at least two to three, possibly more.

[8] Clear visibility of the right westbound travelling lane would likely be obscured by the line of stopped vehicles in the left westbound travelling lane for Mr. Kwong.  Mr. Kwong proceeded to make his left turn in one continuous sweep over the left westbound travelling lane, and proceeded halfway into the right westbound travelling lane, when he was struck by Mr. Nenadic’s motorcycle approaching from the east.  The car and motorcycle collided in the intersection.  The motorcycle went straight into the right front corner of the BMW, throwing Ms. Tan and Mr. Nenadic from the motorcycle.  There was considerable damage to the BMW.  Mr. Kwong apparently did not see Mr. Nenadic’s motorcycle until just before the impact…

[11] Like my late colleague, Mr. Justice Edwards, factually I have also concluded that both defendants were equally at fault.  Mr. Nenadic should have approached the intersection with more caution in order to be able to stop safely.  Mr. Kwong failed to take into account the manifest hazard in the case of Mr. Nenadic’s approaching motorcycle speeding towards him.  Had he paused for a better look before entering the right westbound oncoming lane, instead of casually continuing on, he would have avoided the collision.

[12] Accordingly, all defendants were equally culpable in fault.

$40,000 Non-Pecuniary Assessment For Fractured Hand With “Triggering”

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

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic hand injury sustained in a motor vehicle collision.

In yesterday’s case (Sandher v. Binning) the Plaintiff was injured in a 2009 head-on collision on the Fraser Highway.  The Defendant admitted fault for the crash focussing the trial on the assessment of the Plaintiff’s damages.

The Plaintiff was a 35 year old construction labourer.  The collision caused closed fractures of his middle and ring finger metacarpals.

These went on to cause weakness and lack of grip in his right hand.  Eventually the Plaintiff developed triggering (causing the fingers to become stuck in the flexed position).  Surgery to treat this condition was not entirely successful.  This caused some restriction in the plaintiff’s vocational abilities.  In assessing non-pecuniary damages at $40,000 Madam Justice Fenlon provided the following reasons:

[21] Mr. Sandher experienced the pain of fractured bones, the inconvenience of a cast for several weeks, pain following tenoplasty surgery, ongoing hand pain and stiffness, and pain from soft tissue injuries. The soft tissue injuries largely resolved within six months of the accident with occasional flare-ups on heavy activity; I find for the following reasons that those flare ups and hand symptoms have had a relatively small impact on his day-to-day life, social activities and general enjoyment of life.

[22] In relation to the impact of the injuries on his recreational activities, the plaintiff claims that he is unable to lift weights, something the plaintiff said in his direct-examination that he did four to five times a week. However, in cross-examination, he conceded that before the accident he only lifted weights at most two to three times a week when he could find time after work. In addition, the plaintiff now has two young children, and he has less time and energy to spend at the gym, quite apart from the impact of his injuries.

[23] The other recreational activities the plaintiff claims have been affected by his injuries are walking and camping. Although Mr. Sandher continues to engage in those activities, he testified that he may walk and camp less often now than before the accident. Again, the plaintiff conceded that he does not have the same amount of time to do these activities because of his young family and the fact that he is often tired after returning from work.

[24] There was some evidence to suggest a loss of ability to do outdoor work. The plaintiff described helping his cousin Narendra Riar enclose an area below an upper level patio before the accident. That involved clearing weeds and leveling the area as well as lifting and carrying heavy paving stones, work Mr. Sandher did without difficulty. Mr. Riar and Mr. Sandher contrasted that occasion with his inability at the end of February or early March 2011 to help his cousin do similar work constructing a shed. Mr. Riar testified that the plaintiff had difficulty carrying the wood for the shed and was unable to use a hammer due to his hand injury. However, under cross-examination Mr. Sandher agreed that he had undergone tenoplasty surgery for his trigger finger only a week or two before trying to help Mr. Riar with the shed…

[27] Taking into account the differences between the plaintiff’s situation and the fact patterns in the cases relied on by the parties, I am of the view that the plaintiff should be awarded $40,000 in non-pecuniary damages…

[38] I find that the plaintiff has proved on a balance of probabilities that the injuries he sustained to his dominant hand, as well as the recurrent flare-ups of soft tissue injuries on heavy activity, have impaired his ability to work as a framer.

Withdrawn Formal Offer Still Effective In Triggering Double Costs

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

In my continued efforts to track the judicial shaping of Rule 9-1, reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, ordering double costs following trial where a Plaintiff bested a withdrawn formal settlement offer.

In the recent case (Bartel v. Milliken) the Plaintiff was injured in a 2008 collision.  Prior to trial the Plaintiff delivered a formal settlement offer of $29,800.  This offer was withdrawn after trial but before judgement.  The trial ended in March of 2012 and judgement was delivered in April.  The judgement exceeded the Plaintiff’s formal offer by abot $9,000.  The Plaintiff applied for post offer double costs.  The Defendant argued these should not be awarded since the offer was withdrawn.  Madam Justice Gerow rejected this argument and awarded post-offer double costs.  In doing so the Court provided the following reasons:

[15] As stated earlier, the defendants submit the fact that Ms. Bartel withdrew her offer after trial is a factor which weighs against the awarding of double costs because it deprived the defendants of the ability to accept the offer at a later date as contemplated by the rule.

[16] However, at the same time the defendants concede that the intention and spirit of the rule governing formal offers to settle is to avoid the cost of a trial. In my view, the fact that Ms. Bartel withdrew her offer to settle between the time the trial ended and judgment was rendered is not a factor that weighs against an award of double costs.

Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Written by admin on . Posted in Damages for Charter Breaches. 52 Comments on Court Holds Government Not Required To Reimburse Penalties Collected Under BC’s Unlawful Impaired Driving Scheme

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether the monetary penalties paid via BC’s Charter violating impaired driving scheme need to be repaid.

Last year Mr. Justice Sigurdson struck down BC’s aggressive drunk driving law finding BC’s ARP scheme unjustifiably violated individuals section 8 Charter rights.  In today’s judgement (Sivia v. Superintendent of Motor Vehicles) the Petitioners asked the Court to reimburse “all penalties and other related costs such as the payment in connection with the remedial program, the payment in connection with the impoundment of the motor vehicle, the payment of a hearing fee, and the driver’s licence reinstatement fee.”

Mr. Justice Sigurdson refused to grant this remedy holding as follows:

[114] I have found that the petitioner’s argument that the declaration of invalidity under s. 52 should have retroactive effect, must fail.  The decision in Sivia #1 that parts of the ARP regime violated s. 8 of the Charter and were, therefore, unconstitutional, represented a substantial change in the law as described in Hislop.  Further, the additional Hislop factors, on balance, weigh in favour of a prospective only application of the declaration.

[115] Although the prospective declaration of invalidity answers the majority of the petitioner’s additional or alternative claims, I have further found that even when assessed independently, the petitioner’s additional or alternative claims must also fail.

[116] With respect to the petitioners’ contention that they are entitled to Charter damages under s. 24(1), I have found that it would not be “appropriate and just” to order such damages as the government, in adopting the ARP regime and applying it to the petitioners and collecting monies from them, did not engage in any misconduct or bad faith actions.

[117] With respect to the arguments that the monies were collected under an invalid law enacted in bad faith, and with respect to the claim for restitution of the monies collected on the basis of the principle of unjust enrichment, I have found that the doctrine of qualified immunity provides a complete defence to both of these claims.

[118] With respect to the argument that certain of the monies collected represent taxes which were unlawfully collected, I have found that those monies are regulatory charges, not taxes, and are not recoverable under theKingstreet decision.

[119] Finally, I have found that as a result of the prospective only application of the declaration of invalidity, any petitioner with any outstanding fees, penalties or suspensions is still subject to paying/serving such fees, penalties, and/or suspensions.

[120] For these reasons, I have concluded that the petitioners are not entitled to the personal and monetary remedies that they seek.  The parties may arrange to appear before me to discuss the issue of costs, or if they agree, they may file written submissions on that issue.

"Genuine Sympathy" Not Enough to Move Away From Loser Pays Consequences

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, Uncategorized.


As previously discussed, a Plaintiff’s financial circumstances is not relevant when assessing “loser pays” costs consequences following trial in the BC Supreme Court (subject to the different analysis that applies when pre-trial formal settlement offers have been made).  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In last week’s case (Staley v. Squirrel Systems of Canada Ltd.) the Plaintiff sued the Defendant for damages due to alleged wrongful dismissal.  The claim was dismissed at trial.  The Defendant applied for costs to be paid with the Plaintiff opposing arguing, in part, that his poor financial circumstances should preclude such a result.  Mr. Justice Williams disagreed and ordered that the Plaintiff pay the Defendant’s costs.  In doing so the Court provided the following reasons:
[17] Regrettably, I find myself unable to accede to the plaintiff’s submissions. The Rule with respect to costs is quite fundamental. While there is some latitude for judicial discretion, the authorities make abundantly clear that the discretion must be exercised in a principled and, I would conclude, cautious manner. Deviation from the basic principle that a successful litigant shall recover must necessarily be carefully constrained…

[21] The third basis for his application is that he is unemployed and experiencing difficult financial circumstances.

[22] While no evidence is before the Court to establish precisely what his present situation is, I will accept that it is not good. I have genuine sympathy for this plaintiff. I am sure that the requirement to pay costs to the defendant will be a real burden for him in his circumstances.

[23] Indeed, I expect that it is frequently the case that there are substantial discrepancies between the means of parties to litigation. Unsuccessful litigants are not infrequently in difficult financial straits, and orders for costs can exacerbate that situation.

[24] However, I am unable to conclude that an order requiring him to pay the defendant’s costs, in accordance with the relevant tariff, $11,000, would be so “unfair and inappropriately punitive” to make the order sought. There are no special circumstances in this case which warrant an order for reduced costs or relieving the plaintiff from paying the defendant’s costs.

No Negligence For Crash Following Tree Suddenly Falling on Roadway

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


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, following a summary trial addressing negligence for a collision which occurred after a tree suddenly fell onto a roadway.
In this week’s case (Waters v. Mariash) the Plaintiff was involved in a collision after a cottonwood tree “suddenly fell across the the highway, cutting off both lanes“.  The Plaintiff was in the curb lane and struck the tree.  The Defendant was driving in the inside lane a few car lengths behind the Plaintiff.  He hit his brakes, his vehicle fishtailed and hit the tree and the Plaintiff’s vehicle.  The Plaintiff argued the Defendant was negligent but the Court disagreed dismissing the claim against him.  In doing so Madam Justice Humphries provided the following reasons:
[7] The defendant said on discovery that he was about 100-150 feet away from the tree when he started to brake.  He said he had switched into the fast lane to avoid the merging traffic from 176th Street, and had been travelling about 100 kph in a zone posted at that speed.  He reduced his speed to about 90 – 95 kph when the downpour started.  He was travelling 8 – 10 car lengths behind the plaintiff’s Bronco.  When he saw the tree begin to fall, he put on his engine brake and downshifted, breaking and beginning to slide a little on the wet pavement.  His tires were brand new Michelins…

[15] The accident occurred on a heavily travelled freeway near between Vancouver and Surrey.  While there is always the possibility of obstructions on such a highway, such as an animal or a child dashing out, it would be a very remote possibility in such a location.

[16] The accident was not the result of an obstruction such as branches or debris that one might expect in a wind storm and that would be there to be seen if one were travelling at a reasonable speed.  This accident occurred because a tree fell suddenly in front of both vehicles, blocking both lanes.  Both vehicles hit the tree.

[17] This is not similar to a situation where a driver is travelling in the winter and is expected to cope with unexpected icy patches (according to the Court of Appeal in Redlack v. Vekved, supra, but perhaps not inHearn v. Rowland, supra).  There is no evidence from which an inference could be drawn that the defendant in this case was driving beyond his own competence or that of his vehicle.  He was travelling below the speed limit.  He was faced with an unexpected event that could not be anticipated and he reacted reasonably.  The other options suggested by the plaintiff are not reasonable in these exigent circumstances, and may have been even more dangerous.

[18] According to Hearn v. Rowland, the defendant does bear a heavier onus if he asserts a defence of inevitable accident, but not if he seeks to show, as in this case, that the accident happened without any negligence on his part.  The onus is therefore on the plaintiff to show that the accident occurred as a result of the defendant’s negligence.  I am not persuaded that he has done so.

[19] The action against the defendant Mariash is dismissed, with costs at Scale B.