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Cost of Future Care and Publicly Funded Benefits

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


Reasons for judgement were released last week by the BC Supreme Court, Kelowna Registry, addressing whether future care damages can be awarded for health care items that are publicly available but more quickly available through private options.  In short the Court held that damages can be awarded for these damages provided there is evidence that electing the private route is reasonable and subject to the possibility the expenses will actually be incurred.
In this week’s case (Engqvist v. Doyle) the Plaintiff suffered chronic injuries as a result of two collisions.  These needed diagnostic nerve blocks and depending on the results rhizotomies.  Both procedures were available through BC’s public healthcare system but private options were available on a much more expedient basis.  The Plaintiff sought damages for the private procedures.  ICBC argued this was not necessary.
Ultimately Mr. Justice Rogers awarded some damages considering the cost of these private interventions but was conservative in the award noting some “reservations” about whether the Plaintiff would actually undertake private treatments.  In allowing damages for these items the  Court provided the following reasons:

[44] The parties brought to trial conflicting views concerning the plaintiff’s claim for money to pay for private health care. That claim is for money to pay for private provision of four to six medial nerve block injections and, if the injections are diagnostic of further therapy, one or more rhizotomies upon the indicated nerves. The parties differed on whether the plaintiff should receive an award sufficient to pay for the injections and rhizotomies at a private health care clinic, or whether the plaintiff should confine herself to the free-to-her public health care system. The plaintiff plumps for the former, the defendants argue for the latter.

[45] The first point to address on this issue is that it does not concern the Canada Health Act. It does not require a philosophical discussion of the pros and cons of a general public health insurance scheme. Neither does the issue raise concerns about “queue jumping” by a well-resourced patient.

[46] Instead, the fundamental issue is whether a particular future treatment modality is reasonably necessary to promote the plaintiff’s mental and physical health: Milina v. Bartsch (1985), 49 B.C.L.R. (2d) 33 (S.C.). In the case of medial nerve blocks, the evidence at trial was clear that the plaintiff should undergo at least one set of medial nerve block injections. The evidence at trial was also clear that the plaintiff could access medial nerve block injections on a fee-for-service basis at a private health clinic pretty much at her convenience, while publicly funded medial nerve blocks require that the plaintiff go on a four- to six-month waiting list. Similar time frames apply to rhizotomy procedures if such are indicated by the nerve blocks.

[47] In Moussa v. Awwad, 2010 BCSC 512, Russell J. considered a similar claim. The plaintiff suffered a shoulder injury and, after a lengthy period of investigation and diagnosis, elected to pay for repair surgery at a private clinic. He claimed the cost of that surgery as a special damage. Russell J. allowed the claim, saying:

[266] While the cost of private care will not be an appropriate special cost in every case, given the plaintiff’s emotional uncertainty about surgery and his continuing pain, this is a rare case and I find it reasonable in this case that the plaintiff chose to pursue private surgery with the doctor that he trusted and so that he could have his pain relieved immediately. I therefore award the plaintiff the costs of the surgery.

[48] In the present case, the evidence established that it is possible for the plaintiff to obtain nerve blocks and rhizotomies more quickly if she paid for them than if she waited for the public health system to provide them.

[49] Private fee-for-service care, therefore, offers the plaintiff the possibility of alleviating her symptoms more quickly than the public system. That is the only point of commonality on this narrow issue between this case and Moussa. More particularly, the plaintiff testified that she wants to try the medial nerve block injections and would consider a rhizotomy. She is not, therefore, unsure or uncertain about the therapy. Unlike the plaintiff in Moussa, the plaintiff here did not testify that she has any feelings of trust in or loyalty to any particular medical practitioner.

[50] The question in this case comes down to whether the plaintiff ought to mitigate her cost of future care by confining herself to the public health care system. That question can only be resolved by determining whether it is reasonable for the plaintiff to submit to the wait times and vagaries of the public health care system, thus increasing the length of time before she will know if a rhizotomy will reduce her pain. Private provision of medial blocks will considerably accelerate her coming to know whether a rhizotomy will likely help her.

[51] Reasonable in this context must be measured by an objective standard. What is reasonable in a given case must take into account not only the wait times involved, but also the degree of the plaintiff’s pain while sitting out those wait times and the effect that that pain will have on the plaintiff’s enjoyment of life. A minor ache in one’s little finger would be unlikely to be sufficient to underwrite expensive privately funded health care while a case of surgically curable paraplegia probably would.

[52] Accepting as I do the plaintiff’s evidence concerning the pain she has and its interference with her everyday life, I find that the plaintiff’s pain and its interference with her enjoyment of life is sufficient to merit acceleration of treatment via funding of private health care.

Plaintiff Expert Witness Allowed to Attend Defendant Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 7, Civil Procedure.


The law in BC generally permits only parties and their lawyers to attend examinations for discovery.  In limited circumstances, however, the Court can permit others to attend a discovery relying on the BC Supreme Court’s ‘inherent jurisdiction‘.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Burgess v. Buell Distribution Corporation) the Plaintiff suffered “very serious personal injury” in a motorcycle accident.  He sued the manufacturer and scheduled an examination for discovery of an engineer employed with the Defendant.  The Plaintiff argued that his expert should be allowed to attend as the claim includes “matters requiring an understanding of technical concepts relating to the design, manufacture, and testing of motorcycles and sidecars“.
The Defendant opposed arguing this would add unnecessary time and expense to the Court Proceedings.  Mr. Justice Grauer disagreed with the Defendant and allowed the expert to attend.  In doing so the Court provided the following reasons:

[6] The Rules do not specifically address this issue, but it has certainly been the practice in this province that only the parties and their legal representatives may attend examinations for discovery in the absence of consent or an order of the court.

[7] In Ian Macdonald Library Services Ltd. v. P.Z. Resort Systems Inc. (1985), 67 B.C.L.R. 269, Madam Justice Southin, then of this Court, considered a similar application and said this:

[6]        I think the simple and sensible answer to this question is that counsel should be able to do so whenever the nature of the case is such that counsel cannot reasonably be expected to conduct a full and proper cross-examination of the witness being discovered without expert assistance.

[7]        Whether in any given case such expert assistance is necessary will depend, among other things, on:

1.         The issues in the action;

2.         The level of technical and scientific knowledge which can reasonably be expected of counsel generally at any given time;

3.         The extent of inconvenience to which the parties may be put if counsel must conduct part of an examination then adjourn it, consult with an expert and conduct the rest of it perhaps on some other occasion.

…

[9] I find that the issues in this case raise a level of technical and scientific knowledge beyond what can reasonably be expected of counsel generally.  While counsel normally are very adept at quickly, if temporarily, acquiring specialized knowledge relevant to their cases, it would be unwise I think for the court to second-guess the judgment of counsel as to what is required for the full and fair examination of an opposite party who possesses specialized expertise in this type of case.  Given the nature of the issues, I see nothing that strikes me as unreasonable about the request.

[10] What must be considered however is whether accommodating the request of examining counsel would result in prejudice to the party being examined.  If so, then the court must attempt to weigh that prejudice against the prejudice to the examining party of being deprived of expert assistance.

[11] In this case, no prejudice has been put forward by Harley-Davidson other than the concerns of disruption, increased expense, and extended time.  As to disruption, both counsel are experienced and I see no reason to suppose that this concern is likely to materialize in any meaningful way.  As to increased expense, the evidence does not satisfy me that such a result is likely.  Similarly, the time is at least as likely to be shortened as it is to be extended.

[12] Counsel for the defendant suggests that this will lead us down a slippery slope to a result where counsel will always request expert assistance at examinations for discovery in technical cases.  I very much doubt that that will follow, but in any event each case will be dealt with on its individual circumstances.  Where the examining party can establish the need, and the party being examined cannot establish prejudice, there is no reason to worry.  It did not worry Madam Justice Southin.

[13] As to the concept of proportionality, it seems to me that granting the relief requested is more likely to promote than inhibit the just, speedy, and inexpensive determination of this proceeding on its merits taking into account the amount involved, the complexity of the issues and the importance of conducting a full, fair and informed examination for discovery.  Accordingly, leave is granted as requested.

Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 56 Comments on Out of Province Quantum Awards Not Binding in ICBC UMP Proceedings


In my continued efforts to create a searchable UMP Claims database, I summarize a 2009 UMP Decision addressing whether ICBC could re-litigate quantum of damages after the issue was already decided in an out of Province trial.  In short the Arbitrator held that trial verdicts addressing liability are binding for UMP coverage purposes but awards addressing quantum are not binding as these need to apply the law of British Columbia.
In the recent case (Undisclosed v. ICBC) the Claimants were badly injured in a 1996 collision in Washington State.  The at fault driver had only $200,000 of insurance coverage.  The injured parties were each insured with $1 million of Underinsured Motorist Protection with ICBC.  They sued the ICBC insured driver in Washington State and were awarded global damages of $9.1 million with 5 of the 6 Claimants’ individual awards exceeding $1 Million.
The Claimants and ICBC could not agree on the amount of UMP Benefits payable and submitted the issue to arbitration.  The arbitrator was asked to decide if the quantum award from Washington State was binding (less applicable deductions) or if the issue could be re-litigated.  In finding that the Washington State jury award addressing damages was not binding Arbitrator Camp provided the following reasons:
21.  On the facts of this case ICBC concedes the claimants have satisfied all of the prerequisite requirements laid down for UMP coverage.  Hence, it is conceded that the Washington jury verdict established liability on the underinsured motorist, resolved issues of contributory negligence and established that the damages attributable to the fault of the underinsured motorist exceeded the insurance limits and assets available to compensate the claimants.  Put another way, it is conceded that the Washington jury verdict determined that the claimants are “insureds” and (the at fault motorist) is an “underinsured motorist” for the purposes of the UMP scheme.
22.  In the majority of cases, in my experience, the parties (ICBC and the claimants) agree that the prerequisites for UMP coverage have been satisfied and the parties arrive at a settlement pertaining to UMP compensation.  Where the parties cannot agree, ICBC can follow one of two courses of action.  ICBC can either require that the claimant(s) proceed to a tort trial to determine the prerequisites necessary for UMP arbitration, or they can agree that those prerequisites have been met and proceed to an UMP arbitration by consent.
23.  In this case, the evidence satisfies me that ICBC required a tort trial to determine the prerequisites necessary for UMP arbitration.  The claimants chose Washington State as the most favourable jurisdiction to proceed with the tort trial, for good and valid reasons which are not germane to the arbitration issue before me…
28.  Section 148.2(6)(a) relating to the legal entitlement to UMP coverage is relatively straightforward.  It says that where an accident for which UMP compensation is being sought occurs in another jurisdiction, the law of the place where the injury or death was suffered shall be applied to determine whether the claimants are legally entitled to recover UMP compensation and if a difference arises as to that legal entitlement, that difference shall be arbitrated under the Commercial Arbitration Act of British Columbia.  It is section 148.2(6)(b) relating to the measure of any damages and the assessment of the amount of UMP compensation payable that is at the nub of this arbitration…
33.  Turning to my interpretation of s. 148.2(6), I find that the section is properly interpreted to mean that issues of legal entitlement shall be determined by Washington law in this case and that the issues pertinent to quantum of damages shall be determined by the law of British Columbia.  I am fortified in coming to this interpretation because of the linkage between s. 148.2(6) and s. 148.1(5).  Section 148.1(5) constitutes a limiting provision and the limitation only works or works much better if the interpretation of s. 148.2(6)(b) is interpreted such that the issues pertaining to the quantum of damages shall be determined by the law of British Columbia.

Injuries "Are Not Items on a Grocery List" and the Court "Is Not a Cashier"

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases, Uncategorized. 57 Comments on Injuries "Are Not Items on a Grocery List" and the Court "Is Not a Cashier"


Reasons for judgement were released this week providing feedback on valuing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) noting that injuries cannot be addressed in a piece-meal fashion and instead the total consequences need to be considered.
In this week’s case (Engqvist v. Doyle) the Plaintiff was involved in two collisions.  She was not at fault for either.  The crashes caused various soft tissue injuries which required diagnostic medial nerve blocks and depending on the result the possibility of facet rhizotomies.  The Plaintiff also sustained a dental injury.   Given the planned further medical intervention there was likelihood of improvement but also a good chance that the Plaintiff’s injuries would pose permanent difficulties.  Global Non-Pecuniary Damages of $70,000 were assessed for the Plaintiff’s injuries.
In arriving at this figure Mr. Justice Rogers provided the following comments addressing the fact that it is wrong to stack injuries in assessing non-pecuniary damage awards:

[28] The plaintiff’s approach to assessing non-pecuniary damages is flawed. Discrete physical injuries are not items on a grocery list, and the court is not a cashier totting up the damage. The plaintiff’s dental injuries cannot be given a separate line-item in the assessment of her non-pecuniary loss. The assessment is a global exercise and must be based upon the effect that the injuries as a whole have and will have upon the plaintiff’s life.

[29] I find that the plaintiff’s injuries have had and will in the future have a significant impact upon the plaintiff’s ability to enjoy life. The injuries have curtailed the plaintiff’s otherwise active lifestyle. She does not ride her bicycle as much as she used to, she does not play golf with the same frequency or engagement as before the accidents, and her overall participation in life has been diminished. She has a constant ache in the soft tissues over her right shoulder blade. It takes very little use of the plaintiff’s right arm to cause that ache to escalate to a serious pain. The plaintiff will likely undergo at least one series of medial nerve block injections. These will be painful procedures. They are diagnostic in nature – that is to say: the discomfort that she will experience during these injections will be only part of the price in pain that she will have to pay. If the nerve blocks are effective, then the plaintiff will likely undergo one or more rhizotomies. These will be wildly painful. If successful, the rhizotomies will afford the plaintiff with considerable but not complete relief from her symptoms. The relief will likely not be permanent and will last anywhere from six months to five years. The plaintiff may choose to undergo as many as two more rhizotomies. She might, on the other hand, decide to simply live with the pain. In either case, the plaintiff’s enjoyment of life will be reduced by symptoms attributable to the accidents.

[30] I have reviewed the authorities upon which the parties rely in support of their respective positions. No one case is entirely on point, nor is any one case completely irrelevant. In my view, the proper amount of non-pecuniary damages for the first collision is $65,000 and for the second collision it is $5,000.

For a discussion of the factors BC Courts do consider in assessing non-pecuniary damages you can click here for a podcast I uploaded last year.

Expert Report Admissibility Can Be Determined in Advance of UMP Arbitration

Written by admin on . Posted in BCSC Civil Rule 11, ICBC UMP Cases, Uncategorized.

In my continued efforts to create a searchable UMP Rulings Database, I summarize a 2009 ruling finding that expert report admissibility can be determined ahead of a scheduled arbitration.
In the 2009 decision (COSH v. ICBC) the Claimant was injured in a 2001 collision in California.   In the course of the proceeding the Claimant served an expert report from a rehabilitation consultant discussing future care needs.  ICBC brought an application seeking to exclude the report arguing it should be held “wholly inadmissible“.  The Plaintiff argued that the report should be admitted but in any event it was premature to decide the issue until Arbitration was underway and the report was formally tendered.
Arbitrator Yule ultimately held that the report was admissible but that certain portions went beyond the authors area of expertise.   Prior to reaching this decision Arbitrator Yule provided the following comments about adjudicating these applications prior to arbitration:
25. …I do not consider the fact that the report may never be introduced into evidence under Rule 40A(2) because COSH may elect to treat the report as notice and introduce Dr. V’s opinions viva voce at the Hearing under Rule 40A(3), as a reason for declining to address the Respondent’s objections.  In either instance there will arise the same question of admissibility, ie. whether some of his expressed opinions are outside the area of exprtise as outlined in the CV.  If his evidence were tendered through Dr. V. at the Hearing, the only difference would be that Dr. V. would give evidence and be questioned about his qualificaitons in the course of determining the scope of his admissible opinions.  However, the fundamental proposition of which the Respondent relies is that some of the opinions expressed in Dr. V’s report can only be properly given by someone wiht a degree in medicine and it is not disputed that Dr. V. does not hold such a degree.
26.  It also seems to me beneficial to both parties to know in advance of the new Hearing date whether the Respondent’s objection will be sustained….Some clarity on the admissibility of Dr. V’s opinions may assist both parties in determining what additional steps they wish to take in preparation for the new Hearing.

Chief Justice Bauman Warns BC's Judicial System is "threatened, if not in peril" Due to Underfunding

Written by admin on . Posted in Uncategorized.


In a speech given at a Canadian Bar Association BC Branch conference earlier this week Robert Bauman, the Chief Justice of the BC Supreme Court warned that government underfunding has caused a “gradual, insidious process of incremental damage” which has threatened BC’s Court system.
You can click here for a link to the full text of the speech.

More on the Responding Report "IME" Limitation

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 56 Comments on More on the Responding Report "IME" Limitation


Adding to this growing database of caselaw considering the relationship of Rule 7-6 and  Rule 11-6(4), reasons for judgement were recently released by the BC Supreme Court, Chilliwack Registry, demonstrating that “responding” independent medical exams will not be granted as a matter of course.
In the recent case (Godfrey v. Black) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  Her pleadings specifically identified an alleged TMJ Injury.  In the course of the lawsuit the Plaintiff was examined for discovery with respect to her TMJ pain.  She also served an expert report addressing this injury in compliance with the time-lines set out in the Rules of Court.
The Defendant brought an application for the Plaintiff to be assessed by a TMJ specialist of their choosing.  Their application was brought after expiry of the 84 day expert report service deadline   They argued an exam was necessary in order to obtain a responding report under Rule 11-6(4).   Master Caldwell disagreed and dismissed the motion finding no sufficient evidence was tendered to explain the need for a physical exam.  In doing so the Court provided the following reasons:
[2]  I am told that the pleadings, when they were issued, specifically identified among other things injury to the temporomandibular joint (“TMJ”).  That, it is said, and I agree, put the defence on specific notice that there was an issue relating to the jaw and the TMJ…
[9]  There is no evidence before me to indicate why this particular dental expert believes it necessary for him to do a physical examination of the patient.  In fact, the instruction letter from counsel specifically asks for among other things a critique of the report of the first dentist.  Many of those bullets which appear in the letter which I will not make further reference to appear able to be done on the basis of a criticism of methodology or findings as opposed to requiring an independent examination of the person of the plaintiff…
[13]  I have been referred to several cases, but the one which I find the most helpful is the case of Wright v. Brauer, 2010 BCSC 1282 a decision of Mr. Justice Savage in similar circumstances where he was dealing with a trial date in the near future and an examination such as this where there was no medical evidence as to why a physical examination was necessary in order to provide a truly rebuttal or critical report…
[15]  In my view, the same reasoning applies in this case…
[18]  This application comes late in the day, a year after the defence was well aware that TMJ was an issue that should be looked into.  Had they wished to get a full report, they were well able to make that application or the request earlier.  I am not satisfied on the material that there is a basis for me to infer from the submissions of counsel or the material filed that an independent medical examination of the person of the plaintiff is required in order for this dentist to provide a truly rebuttal report.
These reasons are unpublished but as always I’m happy to share a copy with anyone who contacts me and requests these.

$140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

Written by admin on . Posted in ICBC Knee Injury Cases, ICBC Spine Injury Cases, ICBC UMP Cases. 52 Comments on $140,000 Non-Pecuniary Assessment for "Partial Spinal Cord Injury" and Knee Injury

In my ongoing effort to create a searchable UMP Claims database, I summarize a 2009 UMP Decision dealing with an assessment of damages for serious injuries, including a partial spinal cord injury leading to temporary paralysis, following a head on crash.
In the 2009 decision (EH v. ICBC) the 10 year old Claimant sustained serious injuries when she was involved in a head-on collision on the Malahat Highway.  The Claimant’s injuries were severe and her right leg was completely paralyzed following the collision.  She fortunately went on to make an “excellent” recovery, however was expected to suffer from long term problems as a result of her injuries.
The at-fault driver was an “underinsured” motorist and the parties agreed to have the quantum of the claim assessed via UMP arbitration.  Arbitrator Yule assessed the Claimant’s non-pecuniary damages at $140,000 and in doing so provided the following reasons:
76.  At age 10 the Claimant sustained serious, multiple injuries in the Accident.  The three most serious injuries were:
a.  A Brown-Sequard partial cervical spinal cord injury
b.  Bony cervical spine injuries including compression fractures at C-7, T-1 amd T-2, facet subluxation at C-7 – T-1 and avulsion of the C-7 spinous process; and
c.  an anterior tibial spine avulsion injury in her right knee (anterior cruciate ligament avulsion and grade 2 medial collateral ligament strain)
77.  At the outset, her right leg was completely paralyzed.  She:
a.  spent 50 days in three different hospitals
b.  experienced neuropathic pain (excruciating pain to mere touch) for 20 days;
c.  required her neck immobilized in sandbags when in bed;
d.  at all other times wore a Minerva brace for 60 days;
e.  wore an extreme right knee brace for 75 days; and
f.  wore a plastic boot on her right foot for foot drop for approximately 5 weeks.
As of August, 2006, approximately five months post-accident she:
a.  had received 70 physiotherapy treatments; and
b.  40 occupational therapy treatments.
The Accident and the acute treatment phase was a wholly frightening experience for a young child.  For par of her hospitalization she was in isolation.
78.  The Claimant sustained a number of permanent disabilities as follows:
a.  right leg limp
b.  weakness, fatigue and reduced endurance in the right leg;
c.  loss of sensitivity of the left leg exposing her to the risk of burns or frostbite
…
87.  …having in mind the Claimant’s initial complete right leg paraplegia, the extreme neuropathic pain which lasted for 20 days, the significant permanent restrictions resulting from weakness, fatigue and decreased endurance of the right leg, the impending surgical repair of right knee ligament damage and the early onset of symptomatic degenerative spinal arthritis I assess damages at $140,000.

Access to Justice and Security for Costs

Written by admin on . Posted in Uncategorized. 56 Comments on Access to Justice and Security for Costs


As discussed many times, the BC Supreme Court operates on a “loser pays” system generally requiring a losing litigant to pay the winner’s costs and disbursements.  These costs awards can quickly add up to tens of thousands of dollars and can easily exceed a litigant’s ability to pay.
Although the BC Supreme Court has the ability to require a Plaintiff to pay security for costs ahead of trial, for the obvious reason of ensuring access to justice this discretion is rarely exercised.  This was demonstrated in reasons for judgement released this week by the BC Supreme Court, Vancouver Registry.
In this week’s case (Hughes v. Hughes) the Plaintiff sued her parents for various harm she claims she suffered due to their actions many years ago.  The Defendant brought a motion to dismiss the lawsuit arguing that it was an abuse of process.  The Court dismissed this motion finding that while the allegations may have been somewhat unique they “essentially amount to battery, breach of trust and fraud, all of which are well-recognized causes of action“.
The Defendant further argued that the case was bound to fail due to limitation issues and requested Security for Costs.  The Court agreed that while the case may be limitation barred that was an issue for trial.  In dismissing the application for costs security Mr. Justice Smith provided the following reasons:

[18] The defendants seek, in the alternative, an order that the plaintiff post security for costs. They say she has no history of steady employment and would not likely be able to pay costs if the action is dismissed. The plaintiff says in an affidavit that she is employed as a pre-school teacher, but gives no particulars of that employment.

[19] The law governing security for costs was summarized by Goepel J. in Bronson v. Hewitt, 2007 BCSC 1751. Although the court has inherent jurisdiction to order an individual resident in the jurisdiction to post security for costs, that jurisdiction should be exercised cautiously, sparingly and only under very special or egregious circumstances.

[41] …For good reason, individual and corporate plaintiffs have always been treated differently. Absent special circumstances, corporate shareholders are entitled to avail themselves of the protection of a limited liability company to avoid personal exposure for costs: P.G. Restaurant Ltd.  v. Northern Interior Regional Health Board et al., 2006 BCSC 1680. An order for security for costs prevents the principals of a corporate plaintiff from hiding behind the corporate veil and, as noted by McGarry V.C. in Pearson, protects “the community against litigious abuses by artificial persons manipulated by natural persons.”

[42]  With individuals, the fundamental concern has always been access to the courts. Access to justice is as important today as it was in 1885 when Lord Bowen declared in Cowell that “the general rule is that poverty is no bar to a litigant”. Individuals, no matter how poor, have always been granted access to our courts regardless of their ability to pay a successful defendant’s costs. Only in egregious circumstances have individuals been ordered to post security for costs.

[20] Examples of such special or egregious circumstances include situations where the plaintiff is or has been a party in multiple other actions (Louie v. Louie, [1998] B.C.J. No. 2097), or where the plaintiff has been unable to produce any evidence in support of his claim many years after commencing the action (Rotvold v. Rocky Mountain Diesel Ltd., [1997] B.C.J. No. 1758). No comparable special circumstances have been shown to exist here and the evidence as to the plaintiff’s alleged impecuniosity is entirely speculative.

[21] The application for security for costs must therefore be dismissed.

[22] The plaintiff seeks an order striking out the statement of defence because the defendants failed to attend an examination for discovery. At the time, the defendants were requesting production of certain documents. Those documents had not been received and, until shortly before the scheduled examination for discovery, counsel for the defendants understood that the former counsel for the plaintiff was still assembling them.

$70,000 Non-Pecuniary Damage Assessment for Chronic Soft Tissue Injury; ICBC Expert Rejected

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

Reasons for judgement were released yesterday by the BC Supreme Court, Vancouver Registry, assessing damages for motor vehicle related injuries.
In yesterday’s case (Kardum v. Asadi-Moghadam) the Plaintiff was involved in 2 collisions.  He was not at fault for either.   The Plaintiff’s physicians provided evidence that he suffered from chronic soft tissue injuries as a result of these crashes.  ICBC’s expert (Dr. Grypma) provided evidence minimizing the Plaintiff’s injuries.  Mr. Justice Armstrong preferred the Plaintiff’s physicians and concluded that the collisions were responsible for the Plaintiff’s ongoing pain.  In assessing non-pecuniary damages at $70,000 the Court made the following findings:
[112] I conclude that Mr. Kardum suffered a chronic soft tissue injury to his neck, shoulder, and upper back region caused in the accidents of 2007 and 2009. In addition to those injuries Mr. Kardum suffers ongoing chronic headaches and disrupted sleep secondary to his neck pain. His prognosis is guarded and it is unlikely that he will become symptom free. The intensity of these symptoms will vary over time and he will likely achieve some improvement over the next one to two years. The measure of that improvement is unknown but may be a function of his efforts in pursuing the recommendations of Dr. Caillier…
[161] I conclude that Mr. Kardum suffers from chronic pain involving his left posterior lateral neck, his posterior shoulder, and upper back region. He continually has headaches and disrupted sleep secondary to the pain involving his neck. He has some prospect of improvement in symptoms but will likely have a measure of pain or discomfort for the balance of his life…

[173] I have concluded that the nature of Mr. Kardum’s injuries coupled with the duration of symptoms that are likely to be permanent will diminish his lifestyle and affect his social relationships. There may be improvement but there will be a permanent reduction in his enjoyment of a lifestyle that was, before the accidents, unbounded by any physical limitations. He has been resilient to the point of maintaining an active physical exercise routine but will continue to have the nagging discomfort and inconvenience of the symptoms he now complains about. He is a young man and will have these symptoms over many years; his will be a different life because of the accident.

[174] I conclude that Mr. Kardum is entitled to non-pecuniary damages of $70,000.

This decision is also worth reviewing for the Court’s comments on the various expert witnesses that testified.  In rejecting ICBC’s independent medical examiner Mr. Justice Armstrong provided the following reasons:

[111] Dr. Grypma is an orthopaedic surgeon. He is not a specialist in rehabilitation medicine. His opportunity to observe and examine Mr. Kardum was restricted to a single 1.5 hour examination on January 31, 2011. He confirmed that Mr. Kardum did not demonstrate any nonorganic symptoms. He was not aware of the amount of damage to the defendant’s vehicle in the first accident. He did not make the same observations of Mr. Kardum’s physical symptoms noted by Drs. Caillier and Schukett. Where there are conflicts between his opinions and the evidence of Drs. Caillier and Schukett, I accept the opinions of the latter two doctors.