BC INJURY LAW – Page 150 – The MacIsaac Group of Law Firms

MSP and Pharmanet Printouts Disclosable on a Case by Case Basis

Written by admin on February 23, 2012. Posted in BCSC Civil Rule 7, Uncategorized.

Two documents that ICBC routinely asks Plaintiff’s to produce in the course of personal injury lawsuits are MSP and Pharmanet Printouts. These are documents which essentially keep track of all of a Plaintiff’s medical visits and prescription medication fillings. Does a Plaintiff need to comply with a request to produce these documents? Reasons for judgement were released last month by the BC Supreme Court, Victoria Registry, addressing this issue finding that these documents are not automatically producible but very well may be depending on the facts of the case.
In last month’s case (Edwards v. Ganzer) the Plaintiff was injured in a 2008 collision. In the course of the lawsuit ICBC requested that the Plaintiff produce her MSP and Pharmanet Printouts for various periods of time. Ultimately the Plaintiff was required to produce some of these records. Prior to making the production order Master Bouck provided the following reasons addressing production requests for these records:

[51] Thus, in a personal injury action, a plaintiff’s MSP and Med Profile will not be ordered produced to the defence regardless of the facts of the case. At the very least, there must be some “air of reality” between the documents and the issues in the action: Moukhine v. Collins at para. 22.

[52] Correspondingly, decisions where the production of these kinds of records have been denied will likely have little or no precedential value to the plaintiff here as the facts are bound to differ from those in the case at bar.

[53] Neither of these propositions represents a change in the law since the introduction of the SCCR.

[54] What is new to this discussion is the role that proportionality plays in making an order under Rule 7-1(14). Although not specifically provided for in Rule 7-1, it is only logical that the court should take into account the objects stated in Rule 1?3 (2) when exercising its discretion with respect to compliance with the broader disclosure demand: see Kim v. Lin, 2010 BCSC 1386 at para. 29. Indeed, those objectives have been considered by the court in the decisions already cited.

[55] In terms of relevancy, the plaintiff has already acknowledged the relevancy of the MSP and Med Profile records by disclosing these records on her initial list of documents. It would seem apparent that the plaintiff concedes that this document ought to be produced under the Guano test.

[56] While the plaintiff’s submissions suggest that privacy concerns come into play, there is no evidence from the plaintiff herself (either directly or on information and belief) which might justify aHalliday form of order: Gorse v. Straker, 2010 BCSC 119 at paras. 12, 13 and 36.

[57] Paraphrasing the test set out in Global Pacific, the issue to be determined is whether the MSP and/or Med Profile records sought can properly be said to contain information which mayenable the defendant to advance his case or damage the case of the plaintiff, if it is a document which may fairly lead to a train of inquiry, or if it may have either of these consequences.

[58] Both the evidence and pleadings raised issues of mitigation (i.e. rehabilitation efforts; following professional advice on medication). In that respect, both the MSP and Med Profile record may enable the defence to prove that the plaintiff has failed to mitigate her damages. In addition, these records may serve the purpose described in Creed v. Dorio; that is, to test the credibility and reliability of the evidence presented by the plaintiff to date on her post-accident health.

[59] I have concluded that on the facts of this case, the plaintiff’s MSP record and the post-accident Med Profile ought to be listed and produced pursuant to the demand made under Rule 7-1(11).

Private MRI Cost Recovered as Special Damages in Injury Claim

Written by admin on February 22, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Psychological Injury Cases, Uncategorized.

Further to my recent post on this topic, reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, addressing the recovery of private MRI costs in a personal injury lawsuit.
In last week’s case (Piper v. Hassan) the Plaintiff was injured in a 2006 rear-end collision. The Defendant admitted fault for the crash. The Plaintiff suffered soft tissue injuries and an aggravation of pre-existing back pain and depression. The Plaintiff sought substantial damages at trial although much of the claim was not accepted with the Court finding that much of the Plaintiff’s symptoms would have occurred absent the collision due to pre-existing degenerative changes in the plaintiff’s back.
In the course of the lawsuit the Plaintiff obtained a private MRI. At trial the Plaintiff sought to recover the cost associated with this. The Defendant opposed this arguing it was not a reasonable expense. Mr. Justice Pearlman disagreed and allowed recovery of this item. In doing so the Court provided the following reasons:
[172] Mr. Piper also paid $1,975 for the full spine MRI performed May 18, 2007. The defendant submits this was an unnecessary expense. I disagree. Dr. McGrath had recommended an MRI study. At a time when the plaintiff was experiencing increased back pain and sought medical advice to determine its cause and possible treatment, it was not unreasonable for him to pay for a private MRI, rather than wait in line for publicly funded radiology. The full spine MRI assisted both Dr. Yu and Dr. McGraw in their diagnoses of the extent of the plaintiff’s injuries attributable to the motor vehicle accident, showed the progression of degenerative changes to the plaintiff’s spine, and aided Dr. McGraw in forming his opinion that the plaintiff had not suffered a disc herniation. I find that the plaintiff is entitled to recover $1,975 for the MRI study.

ICBC Projects $605 Million in Net Income For Upcoming Years

Written by admin on February 21, 2012. Posted in Tort Reform, Uncategorized. 48 Comments on ICBC Projects $605 Million in Net Income For Upcoming Years

Included in the BC Government’s Budget released today was ICBC’s Service Plan for 2012-2014. At the conclusion of this document ICBC released their income forecast for 2012-2014. ICBC projects a total of $605 Million Net Income over the next three years:

This is so despite ICBC’s “transfer of excess Optional capital to the government” and the fact that “investment income is forecast to be lower than historical results“.
Projections like this are a good reminder for the rest of Canada that a full tort system can operate, profitably at that, and consumers should not be scared into being stripped of their right to sue when harmed through the carelessness of others due to a perceived “insurance crisis” or other tort reform rhetoric.
In fact, the BC system is so profitable for ICBC that not only has the Government raided ICBC’s coffers for hundreds of millions of dollars in recent years, the Governments current budget specifically looks to the Insurer for contribution to general revenue with plans on taking $146 Million from ICBC in 2012.

Criminal Guilty Plea Strips Defendant of Civil Liability Denial

Written by admin on February 21, 2012. Posted in BCSC Civil Rule 9, Uncategorized. 47 Comments on Criminal Guilty Plea Strips Defendant of Civil Liability Denial

Typically it is an abuse of process for an individual to plead guilty to criminal charges and to then deny liability in a subsequent civil lawsuit arising from the same incident. The BC Supreme Court Rules allow judges to strike pleadings denying previous admissions as an ‘abuse of process‘. Reasons for judgement were released this week by the BC Supreme Court, Nelson Registry, demonstrating such a result.
In this week’s case (Plishka-Humphries (Guardian ad litem of) v. Bolen) the Plaintiff was assaulted and battered by the Defendant Bolen. The Defendant plead guilty to aggravated assault as a result of the incident. In a subsequent civil lawsuit the Defendant denied liability. The Plaintiff brought an application for summary judgement which was granted. In finding the Defendant civilly liable for the incident Mr. Justice McEwan provided the following reasons:
[11] The present case differs from Franco in that the defendant is not asserting a defence that parallels the position he took before the criminal court. In such circumstances a defendant’s position at least has the virtue of consistency. Here, the defendant seeks to give an exculpatory version of facts he has previously admitted…

[13] Here, however, at the sentencing proceeding, the defendant admitted the facts that the plaintiff alleges in the civil case. He now wishes to contradict those admissions. This is not a case of a careless plea, or a plea to a vague and uncertain set of facts. Nor is it a case where there was a lack of incentive to dispute a minor charge. It is also not a case of new evidence. There was no hint or suggestion of a threat from the plaintiff, at the sentencing proceeding, let alone facts that could be characterized as a form of self-defence. There was, rather, a submission that he was taking responsibility and acknowledging the harm he had done. In the context of that hearing it appears that this was offered as a kind of mitigation.

[14] The transcript also contradicts the defendant’s suggestion that he pled guilty on his lawyer’s advice and not because he considered himself guilty. He stood in court while his lawyer represented variously that he was “deeply remorseful”, “wants to plead guilty”, “wants to announce his guilt” … “recognizes this,” that “[h]is reaction was wrong” or that he wanted to save the young man from going to trial, and “have some lawyer probing on–about ball bearings.”

[15] The material the defendant has presented does not raise a genuine issue to be tried. The Certificate of Conviction tendered in this case is roughly equivalent to proof of a formal admission. There is nothing arising from the circumstances in which the guilty plea was entered that casts doubt upon the defendant’s intention at the time, or his appreciation of what he was doing. There is no ambiguity in the facts that he admitted. The explanation he offers for sitting through the hearing on September 21^st, 2005 while the case was, from his present perspective, grossly mischaracterized, is thoroughly unconvincing…

[17] There will therefore be judgment for the plaintiff on the issue of liability and a referral to the trial list on the issue of quantum.

For more on this topic you can click here to review a recent case where a careless driving guilty plea was a barrier to a civil denial of liability following a motor vehicle collision.

$50,000 Non-Pecuniary Damages for Left Sided SI Joint Injury

Written by admin on February 21, 2012. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for Judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury following a motor vehicle collision.
In last week’s case (Connolly v. Cowie) the Plaintiff was involved in a 2009 rear-end collision. Fault was admitted by the rear motorist. The 35 year old plaintiff suffered from chronic low back pain following the collision. Ultimately the injury was diagnosed as an “indiscreet pain syndrome” affecting the plaintiff’s left sacroiliac region. In assessing non-pecuniary damages at $50,000 Mr. Justice Butler provided the following reasons:
[41] In summary, I conclude that Ms. Connolly suffered a significant low back strain as a result of the accident. The accident has caused injury to the myofascial tissues in her left sacroiliac region. The injury has not resolved in spite of her aggressive attempts to continue with exercise and chiropractic treatment and some physiotherapy. She now has chronic pain which is not disabling, but does restrict the type and extent of activities and exercises she can perform. She is still able to do most household tasks, but it is likely she will continue to experience pain with activities. It is unlikely that the pain symptoms will resolve…

[45] Here, Ms. Connolly is unable to continue with long distance running. She does not take medications like Ms. Dutchak, but has persisted with more restricted activities. In the past, she thrived on the combination of exercise and camaraderie with a group of fellow competitors. Her inability to continue with that is a significant loss to her. She has continued to exercise and is now focusing on cycling as a replacement for her previous passion, but has had to give up her dream of working as a fitness instructor. She put much thought and several years of work into attempting to develop a skill that would provide her with income and help fulfil her desire to do strenuous exercise with like-minded people. She is no longer able to do that and this is a significant loss.

[46] In addition to these significant losses, she has to put up with continuing pain and it is likely this will not abate in the future. Considering all of the circumstances, I find that $50,000 is an appropriate award for non-pecuniary loss.

To access my archived posts of other recent BC Supreme Court decisions assessing damages for SI Joint Injuries in ICBC Claims you can click here.

The Perils of Ignoring the Rules of Court

Written by admin on February 20, 2012. Posted in BCSC Civil Rule 22, Uncategorized.

Failing to follow the obligations set out in the BC Supreme Court Rules can not only result in financial penalties, it can result in having your lawsuit outright dismissed before trial. Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, demonstrating this.
In last week’s case (Balaj v. Xiaogang) the Plaintiff was involved in a 2003 collision. She sued for damages. The Defendant admitted being at fault for the crash. At times the Plaintiff had a lawyer, at others she was self represented. In the course of the lawsuit plaintiff failed to discharge her disclosure obligations under the Rules of Court and further failed to obey court orders.
ICBC ultimately applied to have the claim dismissed before trial. In granting the order and in further ordering that the Plaintiff pay costs Mr. Justice Brown provided the following reasons:

[34] Given the factual background in the case at bar, it is abundantly clear, beyond any doubt, that the defendants are entitled to an order dismissing the plaintiff’s action. The plaintiff has failed to comply with court orders on several occasions, has failed to produce relevant documentation upon numerous and repeated requests by the defendants, has failed to participate in examinations for discovery in good faith, and has failed to attend court appearances, such as the recent trial management conference. Moreover, it now appears the plaintiff will seek another adjournment in these proceedings after the date of September 30, 2011, in direct contravention of my Order dated August 11, 2011.

[35] With respect to want of prosecution, I find the length of the delay in these proceedings is inordinate. Nearly nine years have passed since the accident. I also find the delay, virtually all of which has been caused by the plaintiff, is inexcusable. I find the defendants have suffered serious prejudice due to the delay in these proceedings and, on balance, justice requires dismissal of the action.

[36] With respect to the plaintiff’s failure to comply with the Civil Rules, the onus is on the plaintiff to present a lawful excuse for her non-compliance. I find she has failed to present a lawful excuse that is worthy of acceptance.

[37] Finally, with respect to the plaintiff’s failure to comply with the direction of this Court, I also find the plaintiff has failed to present a lawful excuse for her repeated failure, either by refusal or through neglect, to comply with court orders, the most recent being my Order after the trial management conference on August 11, 2011.

[38] For these reasons, the plaintiff’s action will be dismissed under Rule 22-7 for want of prosecution, failure to comply with the Civil Rules, and failure to comply with the Order of this Court dated August 11, 2011. Although the dismissal of an action is a blunt tool that is to be used sparingly, I find the circumstances of the case at bar are such that this tool should be used. In my view, the application of Rule 22-7 in the circumstances furthers the object of the Civil Rules to “secure the just, speedy and inexpensive determination of every proceeding on its merits.”

Have You Seen Google's Self-Driving Car?

Written by admin on February 17, 2012. Posted in Uncategorized.

If not, this short video is worth a view. This is not just a fad with the State of Nevada recently announcing that self-driving cars will be able to legally operate on state roads:

ICBC "User Fees" and Receipted Special Damages

Written by admin on February 17, 2012. Posted in Uncategorized.

ICBC typically covers only a portion of physiotherapy expenses under an individuals own plan of insurance. Treatment expenses over and above ICBC’s insured amounts typically are referred to as ‘user fees‘. Provided that such therapies are reasonably incurred following a collision the fees associated with them are usually recoverable as ‘special damages‘ in a tort claim against the at-fault motorist.
As with most special damages, however, it is important to document these expenses. Failure to do so can result in the claimed expenses being denied. Such a result was demonstrated in reasons for judgement released last week by the BC Supreme Court, Vancouver Registry.
In last week’s case (Daitol v. Chan) the Plaintiff was injured in a motor vehicle collision. At trial the Plaintiff sought recovery of $1,500 of estimated user fees as special damages. The Plaintiff unfortunately did not have receipts to prove she incurred these expenses. Madam Justice Griffin denied this portion of the Plaintiff’s claim and in doing so provided the following reasons reminding Plaintiff’s the importance of documenting their damages:

[63] Ms. Daitol advances a claim for the user fees she was required to pay for her physiotherapy sessions. She estimates that she paid in the range of $1,500-$1,900 in fees out of her own pocket. She therefore advances a claim for special damages of $1,500.

[64] Unfortunately, Ms. Daitol, who was not represented by her current counsel at the time, did not keep track of her physiotherapy expenses and has no corroborating evidence regarding the number of treatments or the exact cost of them. At best, her evidence as to her total out-of-pocket cost was a guess. While I do not believe that Ms. Daitol would in any way attempt to mislead the court, nevertheless, her evidence as to her physiotherapy expenses is inherently unreliable due to the fact that she did not in any way keep track of her sessions or the cost of them. As such, I do not award her any amount in respect of this claim.

$85,000 Non-Pecuniary Damage Assessment For Depression and Anxiety

Written by admin on February 17, 2012. Posted in ICBC Psychological Injury Cases, Uncategorized. 45 Comments on $85,000 Non-Pecuniary Damage Assessment For Depression and Anxiety

Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for accident related anxiety and depression.
In last week’s case (Yeung v. Dowbiggen) the Plaintiff was involved in 4 separate rear-end collisions. These spanned from 2008-2011. Fault was admitted by the rear motorist in each of the crashes. The Plaintiff alleged that as a result of these crashes she suffered from Post Traumatic Stress Disorder. While this diagnosis was ultimately rejected by the trial judge, the Court did conclude that these collisions caused depression and anxiety. These conditions remained symptomatic at the time of trial. In assessing non-pecuniary damages at $85,000 Madam Justice Humphries gave the following reasons:
[103] Taking into consideration all of the evidence and the opinions of these three doctors, I do not accept that Ms. Yeung has post traumatic stress disorder, although she apparently has some symptoms of it. I accept that she has a mild condition of depression and anxiety caused by these accidents, and that it did not, in any significant fashion, pre-date the accidents…

[119] Ms. Yeung is, as Dr. O’Shaughnessy said, vulnerable and emotionally young for her age, but I also accept that there is validity to Dr. Levin’s concern that she has some secondary gain from the devoted attention of her father, her boyfriend and Dr. Guest.

[120] However, it is extremely unfortunate that Ms. Yeung has suffered a series of accidents and that her recovery has been set back regularly and incrementally as a result. Even a strong person would have difficulty dealing with a steady recurrence of similar accidents. The effect of four sequential accidents is, according to the medical experts, cumulative, and each time she begins to start to improve and return to a better level of functioning, she has been hit again, which causes a regression in her improvement with an overall cumulative effect on her life. While the physical symptoms are not extreme, they are still persisting and the psychological effect of the repeated events has seriously affected Ms. Yeung’s ability to enjoy life for a protracted period of time. While it is likely she will continue to improve if she is fortunate enough not to be involved in more accidents, she has already spent four years in a state of turmoil and physical pain.

[121] Several of the cases referred to by the plaintiff are concerned with injuries with effects that are described as severe and devastating; in one case the plaintiff was competitively unemployable, in another the plaintiff could no longer work at the profession he had trained for. In my view, the cases submitted by the defendant are of more assistance. Considering all the evidence within the context of the cases referred to me, and considering that Ms. Yeung has undergone the effects of four accidents, I set non-pecuniary damages at $85,000.