One of the foundations of our tort-system is accountability. Those harmed at the hands of others careless or criminal actions deserve compensation. Those who act carelessly and cause harm ought to be held accountable by providing the compensation. This goes to our basic understandings of fairness.
When governments decide to strip people of their right to sue and instead create no-fault systems of compensation accountability is removed from the picture. This can lead to absurd results as demonstrated in a story published last week by the Globe and Mail.
Accountability matters. At its most basic level no-fault insurance takes away compensation rights of victims and redistributes these to those that cause harm. Examples such as the one pointed out by the Globe and Mail should act as a reminder to Government that removing accountability from the Civil Justice System is a fundamentally flawed policy.
Reasons for judgement were released last week discussing fault for a rear-end motor vehicle collision which occurred after the Plaintiff made a lane change into the Defendant’s lane of travel.
In last week’s case (Perry v. Ismail) the Plaintiff was driving in “bumper to bumper” traffic in the right lane of a highway. There were few vehicles in the left lane as it was closed to traffic ahead further up the roadway. The Plaintiff made a lane change into the left hand lane and shortly after he was rear-ended by the Defendant.
Although collisions such as these can be caused by the fault of both motorists in last week’s case the Court determined that the Defendant was fully at fault for the crash for failing to keep a proper lookout. In assessing the Defendant 100% liable Madam Justice Hyslop provided the following reasons:
[25]Before making his lane change, Mr. Perry shoulder checked and put on his signal light indicating his intention to change lanes. He concluded and I accept he could make the lane change safely. I do not accept Mr. Perry’s evidence that he actually recalls independently at the time of trial doing all of those checks before making the lane change. I do accept that he signalled, looked in his mirrors, did a shoulder check and decided that it was safe to change lanes.
[26]Mr. Perry had completed his lane change and was travelling at least 40 kilometres per hour, accelerating, and had not reached his intended speed when the rear end collision occurred.
[27]Mr. Ismail occupied the left lane and was he aware that vehicles might change lanes given the traffic conditions in the right lane.
[28]As Mr. Ismail drove in the left lane there was nothing to obscure his vision. He did not see the Perry vehicle until the very last moment when he slammed on his brakes, colliding with the rear of the Perry vehicle. He did not see the Perry vehicle’s signal, nor the change of lanes. I find that Mr. Ismail came upon Mr. Perry who was about four to five car lengths ahead of the Kelly vehicle and accelerating. Mr. Ismail should have seen the Perry vehicle signal and should have seen the lane change and should have seen the Perry vehicle ahead of him. He did not see any of these events.
[29]I conclude that Mr. Ismail was negligent in that he was not paying attention and failed to keep a proper lookout for other vehicles as he drove in the left lane on Lougheed Highway. When the Perry vehicle was finally seen by him it was too late. He slammed on his brakes and struck the Perry vehicle.
[30]I find all the witnesses to the accident to be truthful and they did their best to recall the events. Mr. Ismail did not attempt to explain away the accident. He was transparent, despite the fact there may be consequences to him from his employer.
The above image was taken from the BC Government Website where they recently launched a “budget calculator” permitting the public to play around with various tax revenues and expenditures. The calculator is far from complete, however, leaving many expenses out of bounds. One expense which is absent is the CMPA fee subsidy. I recently wrote how BC taxpayers subsidize the defence of doctors in medical malpractice lawsuits. This issue has also received media scrutiny by legal reporter and former lawyer Alan Shanoff. I questioned the propriety of this given the long term under-funding of legal aid and BC’s Justice System.
It seems that Ontario taxpayers will be receiving a break from this subsidy in 2012. A longstanding reader of my blog who does not care to be named notes that taxpayers in Ontario will not be on the hook for CMPA fees for 2012.
The CMPA reports that “The payment of medical liability protection costs in Ontario is guided by two agreements. Firstly and as is the case in other provinces, Ontario physicians benefit from a program that reimburses them for a portion of their CMPA membership fees…For members, the substantial reduction in total CMPA fees translates into individual fees for 2012 that are at, or below, 1986 levels. As the reimbursement program is based on a 1986 threshold, the program will be suspended for 2012 while members “out-of-pocket” costs will remain consistent with previous years. ”
As things stand BC taxpayers will not get the same benefit with the public continuing to subsidize CMPA membership fees despite the CMPA “holding $572 million in unrestricted net assets”. I again askwho is a better beneficiary of the $50 plus million dollars the BC Government has used to subsidize liability insurance dues, the CMPA with half a billion dollars in unrestricted net assets, or BC’s poorest who require legal aid to gain access to justice?
It is not uncommon for judges to reserve their reasons for judgment after a trial concludes. Sometimes this can take many months. What happens if a judge becomes ill or dies during this period of time? Reasons for judgement were released this week by the BC Supreme Court, Kelowna Registry, dealing with such a scenario.
In this week’s case (Walsh v. GMAC Leasco Corporation) the Plaintiff was injured in a motor vehicle incident. After trial concluded the presiding judge reserved his reasons. He fell ill and he could not render judgement. As required by the BC Supreme Court Rules the Associate Chief Justice appointed a new judge to conclude the matter. Complicating matters further the Plaintiff’s lawyer died before the new judge was appointed.
The parties could not agree on how best to finalize the matter. The Plaintiff argued the new judge could review the transcripts from the trial and render a decision. The Defendant argued a new trial was necessary. Mr. Justice Johnston decided that the best resolution would be to review the transcripts and address the recalling of witnesses on an individual basis. The Court provided the following reasons:
[11]Present Rule 23-1(10) is almost identical to former Rule 64(10) and any difference between present Rule 23-1(11) and former Rule 64(11) appears to be mostly in layout rather than substance.
[12]My primary concern is how best to do justice between the parties to this action. In the unusual circumstances of this case, the plaintiff’s stated desire to have the matter retried on the transcripts of the evidence and argument already given should be given greater weight in light of the fact that the counsel chosen by her to carry her case through trial is no longer available to act for her.
[13]The controversy surrounding the written opinion I expect will have been fully argued, that argument will be reproduced in the transcript, and I will be in an equally good position to identify portions of the opinion that are either inadmissible or to which little weight should be attached.
[14]I am persuaded that the appropriate exercise of my discretion under Rule 23?1(11) is to direct that the re-trial be on the official transcript of the evidence heard at the original trial, together with the exhibits filed. That transcript will contain the submissions of counsel on any issues that arose during the trial, together with opening and closing arguments.
[15]I give leave to the parties to apply to have the evidence of any witness reheard orally, but no such application can be made until the transcripts have been received and a suitable time has lapsed to permit reading of those transcripts.
Reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for injuries sustained from two motor vehicle collisions.
In last week’s case (Parker v. Lemmon) the Plaintiff was injured in two separate crashes, the first occurred in late 2008 the second the following month. Fault was admitted by the Defendants for both collisions. The crashes caused an overlapping indivisible injury and damages were assessed globally.
The Plaintiff’s injuries included a Grade 2 Whiplash Associated Disorder in her upper and lower back long with her neck muscles and ligaments. This injury persisted and caused the Plaintiff a partial disability in her job as a care-aid with restrictions associated with “repetitive reaching and pulling and pushing…as well as the repetitive bending with regards to her lower back“.
In assessing non-pecuniary damages at $45,000 Mr. Justice Savage provided the following reasons:
[27]In considering non-pecuniary damages in this case I am also cognizant of the Supreme Court of Canada’s summary of the purpose of non-pecuniary damages as set out in Lindal v. Lindal, [1981] 2 S.C.R. 629 at p. 637:
Thus the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. It therefore will not follow that in considering what part of the maximum should be awarded the gravity of the injury alone will be determinative. An appreciation of the individual’s loss is the key and the “need for solace will not necessarily correlate with the seriousness of the injury” (Cooper-Stephenson and Saunders, Personal Injury Damages in Canada(1981), at p. 373). In dealing with an award of this nature it will be impossible to develop a “tariff”. An award will vary in each case “to meet the specific circumstances of the individual case” (Thornton at p. 284 of S.C.R.).
[28]Such awards will vary in each case to meet specific circumstances. A specific circumstance here is the plaintiff’s overall health condition. That said, I accept that her injuries have significantly impacted her enjoyment of life, including her work, family and social life…
[36]In Fata, the injuries were found to be such that they would not have prevented a return to full-time employment, although with discomfort. Some of the sequelae were resolved at the time of trial, although there was some lingering shoulder pain that would likely not resolve. The Court awarded $45,000 non-pecuniary damages. The factual circumstances are not in all respects similar to the case at bar, but in my view the award in Fata most appropriately approximates what is appropriate here. I note in that case the Court found that the plaintiff could have returned to work but chose not to. In this case the plaintiff did return to her former employment, which her specialist physician opined she could, but she ultimately chose to discontinue that employment and is considering retraining.
[37]In my opinion the appropriate award for non-pecuniary damages in this case is $45,000.
[115]The defendant’s closing submission listed 20 items recommended by Ms. Landy that the defendant argued were not medically supported by any evidence at trial. I agree with that submission. Many of those items would require very significant outlays, for example, a van with a lifting device to transport an anticipated power mobility device.
[116]Mr. Hemmerling made other vigorous submissions challenging Ms. Landy’s impartiality and objectivity and her reliance on facts and opinions not in evidence, and criticizing her for travelling to Dubai to interview witnesses already interviewed by counsel, knowing that Mr. Jarmson would soon be relocating. I would not go so far as to agree that Ms. Landy became an advocate specifically for the plaintiff in this case, but it is a fair comment that she seemed to advocate an expansion of the types of items and services claimable as future care costs under the law.
[117]Ms. Landy did rely on facts, opinions and assumptions not in evidence, and in some instances her costing displayed a discomforting lack of care. An example of the latter is her costing of Dragon Naturally Speaking voice recognition software and instruction at $2,500 when that software and an instructional disc are readily available for $99, as advertized on the distributor’s website.
[118]Ms. Landy acknowledged during cross-examination that she would defer to the contrary views of Dr. Travlos or other doctors in respect of some of her recommendations, such as recommending laser eye surgery to avoid the problem of dropping or damaging contact lenses due to hand tremors which Dr. Travlos cannot attribute to his injuries.
[119]Ms. Landy’s Life Care Plan is not just a Cadillac; it is a gold-plated one, which goes far beyond what is reasonable. For example, her recommendation of one-to-one rehabilitation support for 10 hours weekly, (essentially to replicate what his wife, who has been his constant workout partner, has always done) is unsupported by medical opinions other than her own, and would cost $21,600 per year. The present value of that expense alone is over $338,000. With all its shortcomings, I cannot accord Ms. Landy’s recommendations very much weight in my assessment, other than to provide a checklist for comparison and thoroughness.
Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, assessing damages caused by a motor vehicle collision.
In last week’s case (Cameron v. Hsu) the Plaintiff was injured in a 2008 collision. The Plaintiff was rear-ended and pushed into the vehicle ahead of him. Fault for the crash was admitted by the Defendant focusing the trial on quantum of damages. The Plaintiff sustained a Grade 2 Whiplash Associated Disorder as a result of the collision. His symptoms continued at the time of trial some three years following the crash. In assessing non-pecuniary damages at $40,000 Madam Justice Hyslop provided the following reasons:
[85]I have concluded that Mr. Cameron did suffer neck and shoulder injuries as a result of the accident. As a result of these injuries he suffered headaches. Those appear to no longer occur or are infrequent.
[86]I also conclude that these injuries caused Mr. Cameron difficulties in certain seasons at which time Mr. Cameron sought physiotherapy to resolve the symptoms.
[87]I have also concluded and take into consideration in assessing Mr. Cameron’s claim for pain and suffering that Mr. Cameron, at the outset, had a tendency to “myofascial pain in the neck and upper shoulders” [Dr. Laidlow] several years before the 2007 accident. I also conclude that before this accident that Mr. Cameron’s injuries from the 2007 accident were resolved. I also conclude that Mr. Cameron has resisted doing exercises designed to assist or improve the mobility and flexibility in his neck and in the area of his upper shoulder…
[99]Mr. Cameron, at the time of the trial, continued to suffer from tightness in the shoulder and neck beyond that of his pre-existing condition. Mr. Cameron did not lose time at work and he never thought he should do so or would do so. Mr. Cameron, as confirmed by the evidence of his father, sought medical treatment only when there was something wrong. The evidence is that Mr. Cameron has difficulty with his neck and shoulder when doing office work and not when working on-site and in good weather.
[100]Mr. Cameron chose not to pursue exercise as recommended by Dr. Laidlow and his physiotherapist, so it is difficult to determine the progress he would have made had he done so. Taking that into consideration, I award Mr. Cameron general damages in the amount $40,000.00 for pain and suffering and loss of enjoyment of life.
One of the recognized objections to the introduction of expert opinion evidence in a personal injury trial relates to the opinion relying on novel or untested scientific theory. Reasons for judgement were released last week by the BC Court of Appeal addressing this objection and taking a practical view of the benefits of experts providing opinions based on their years of experience in a clinical setting.
In last week’s case (Cassells v. Ladolcetta) the Plaintiff was injured in a 2005 collision. He suffered from a pre-existing condition, namely psoriatic arthritis. The Plaintiff presented evidence that this condition was aggravated due to the trauma of the collision. This evidence was accepted at trial and damages were assessed accordingly.
The Defendant appealed arguing the medical opinion was based on novel science. The BC Court of Appeal disagreed finding the foundation for an expert opinion can be laid based on clinical experience. In dismissing the Appeal the Court provide the following reasons:
[13]The defendants challenged reliance on Dr. Gladman’s evidence on essentially the same basis at trial as they do now. Their contention was and remains that her opinion was based on what they say is novel science: no scientific data established, beyond mere speculation, that her “theory” was valid. They say that at most the theory is an unproven hypothesis. They cite the criteria for evaluating the soundness of novel science found in R. v. Mohan, [1994] 2 S.C.R. 9, 89 C.C.C. (3d) 402, as drawn from Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786 (1993), and discussed in Taylor v. Liong, 2007 BCSC 231, [2007] 7 W.W.R. 50.
[14]The judge said the criteria pertain to the admissibility of expert evidence. Admissibility requires the weighing of threshold reliability. No issue had been taken with the admissibility of Dr. Gladman’s opinion which it was evident is consistent with a widely held belief in the scientific community. Quoting from R. v. Terceira (1998), 38 O.R. (3d) 175, 123 C.C.C. (3d) 1 (C.A.), aff’d [1999] 3 S.C.R. 866, to the effect the threshold test of reliability must adapt to changing circumstances, the judge said that, in the face of studies that did reflect a wide provisional acceptance of Dr. Gladman’s hypothesis, the lack of a conclusive study should not be fatal to either the admissibility or the weight of her opinion.
[15]Unlike instances where, as in Taylor, the opinion of an expert which is shown to be no more than uncertain theory has been ruled inadmissible, here, as the judge said, Dr. Gladman expressed her opinion on the basis of what she said she had seen in response to trauma among her patients with psoriatic arthritis. What is said to be the inconclusive literature she referenced was, as the judge said, not the only foundation for the opinion she held. It was an opinion based on thirty years of her experience.
[16]The judge reached the ultimate conclusion he did concerning the aggravation of the respondent’s psoriasis and psoriatic arthritis relying on the evidence of the various physicians whose opinions he had to consider. Dr. Gladman’s opinion on the effect of trauma on psoriatic arthritis is consistent with the other opinion evidence which the judge found acceptable, as well as with the evidence of the respondent’s medical condition and, for that matter, the deterioration in his life after the accident. I do not consider there to be any sound basis on which it can now be said the judge made an overriding and palpable error in concluding the respondent’s psoriasis and psoriatic arthritis were aggravated by trauma and stress attributable to the accident by relying on Dr. Gladman’s opinion.
As readers of this blog know I hate insurance fraud. Sometimes fraudulent claims are weeded out through investigation efforts, other times fraudulent claimants unwittingly spy on themselves.
Today, ICBC reports another example of an individual ratting themselves out unwittingly through social media, in this case Facebook. ICBC reports the following tale of insurance fraud undone through social media: (the Claimant’s) troubles began when he rolled his vehicle on a rural road near Springhouse, a small community west of Williams Lake. At the time, he was prohibited from driving so in order to collect insurance on the vehicle, which was a total loss, he convinced a friend to tell ICBC that she was the driver. At the time of the crash, three other people were in the vehicle and fortunately, no one suffered serious injuries. The story came apart after ICBC’s special investigation unit (SIU) became aware that Joseph was bragging on his Facebook page that he had rolled his truck after drinking at a New Year’s Eve party and subsequently got a big payout from ICBC.
ICBC reports that the individual was ultimately criminally charged and penalized with a fine, a restitution order and a conditional sentence.
With more victims of historic childhood sexual abuse prepared to come forward and have their claims heard we have the benefit of more decisions being published by the BC Courts addressing the circumstances when an institution will be held vicariously liable for sexual abuse by their employees. Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, further addressing this area of law.
In last week’s case (R.G. v. Vancouver Police Board) the Plaintiff alleged to be the victim of historic sexual abuse at the hands of the Defendant police officer. (its worth noting the Court made no findings about whether the abuse actually took place).
In his childhood the Plaintiff “alternated between living with his parents….and living with Mr. Hughes“. They formed what was described as a father-son relationship. The Plaintiff alleged he was abused in the course of this relationship. The Defendant was a member of the Vancouver Police Department at the time.
The Plaintiff sued the personal defendant and also the City of Vancouver arguing they were vicariously liable for the abuse. Mr. Justice Burnyeat disagreed and dismissed this portion of the Plaintiff’s claim. In finding no employer vicarious liability should arise in these circumstances the Court provided the following reasons:
[27]The Plaintiff submits that society teaches children from an early age to trust police officers and that makes children and young people particularly vulnerable to the abuse of power by police officers. In the circumstances, the Plaintiff submits that the City “has sufficient control, either directly or indirectly through its constant presence on the Board, to be vicariously liable for Hughes’ wrongdoing”, and that the City “had sufficient power over him through his extracurricular activities – pistol shooting competitions and fishing derbies, during which his abuse of … [the plaintiff] continued that it should be held vicariously liable”.
[28]If I could conclude that Mr. Hughes was an employee of the City, I could not conclude that his wrongful acts were sufficiently related to conduct authorized by the City. I can find no “significant connection”. I can only find that there were incidental connections between the abuse that occurred and the location of the abuse. Many of the alleged abuses took place in VPD vehicles. However, the power that was exerted by Mr. Hughes was the power flowing from the “father-son” relationship which had grown and not any relationship between the Plaintiff and Mr. Hughes as a police officer. As well, the fact that Mr. Hughes was granted access to a VPD police vehicle did not afford any particular ability for Mr. Hughes to abuse his power.
[29]In rejecting the submission made on behalf of the Plaintiff, I cannot conclude that the wrongful acts of Mr. Hughes are sufficiently related to conduct authorized by the City to justify the imposition of vicarious liability. There is not a significant connection between any promotion by the City and by society in general to promulgate the message that children should be taught from an early age to trust police officials and the significant wrongs that are alleged to have occurred.
