Last year I uploaded this video providing a basic overview of some key information for Plaintiff’s attending an examination for discovery in an ICBC Claim. If I could add one more tip to the issues discussed it would be this: Google yourself before attending. It’s a safe bet that ICBC already has.
One of the most basic tasks any lawyer can undertake in preparing for discovery is to Google their subject. Who knows what will come up. Maybe some embarrassing photos on Facebook, maybe a boastful biography on a dating site, perhaps even some unwitting self-surveillance on YouTube. Whatever comes up, if it can harm your interests, it likely will be brought out at discovery.
10 minutes of your time can help you and your lawyer greatly in preparing for discovery. If there is something that needs to be explained its better that this gets discussed for the first time in the privacy of your lawyer’s office as opposed to under oath before a Court Reporter. A bit of time reviewing potentially harmful (or embarrassing) information can go a long way in taking the bite out of an examination for discovery.
For more on examinations for discovery in ICBC Claims you can click here to access my archived posts on the topic.
One of the exceptions to BC’s general rule that ‘costs follow the event‘ is that a party can be ordered to pay their opponents costs relating to a distinct issue at trial. This was demonstrated in reasons for judgement released last week in the context of an ICBC claim.
In last week’s case (Garcha v. Gill) the Plaintiff was injured in a 2005 motor vehicle collision. Following trial the Plaintiff’s damages were assessed at just over $30,000. The Plaintiff had sought damages for loss of income although this portion of his claim was largely unsuccessful. The Defendant applied to be paid a portion of the trial costs. Mr. Justice Cohen agreed that the Defendant was entitled to this relief as the wage loss claim was “the most contentious item during the litigation“. In ordering the Plaintiff to pay 30% of the costs the Court provided the following reasons:
[42]I find that the defendant is entitled to an order for an apportionment of costs.
[43]The test for whether or not an apportionment of costs should occur is set out in Sutherland v. The Attorney General of Canada, 2008 BCCA 27:
[31] The test for the apportionment of costs under Rule 57(15) can be set out as follows:
(1) the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;
(2) there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;
(3) it must be shown that apportionment would effect a just result.
[44]First, I am satisfied that the issue of past income loss is a discrete issue. I am further satisfied that an apportionment of costs of 70% to the plaintiff and 30% to the defendant, as submitted by the defendant, is fair in the circumstances of this case, given the amount for past income loss awarded to the plaintiff, when compared with his claimed amount; the fact that the plaintiff abandoned his claim for future income loss at the commencement of the trial; and, the inordinate amount of time which had to be spent by the defence prior to the trial to secure proper disclosure of the plaintiff’s business records. There is no doubt from the chronology of the events preceding the trial that the plaintiff’s failure to provide full and timely document production of his business records had a large impact on the conduct of the proceedings leading up to and during the trial.
Adding to this site’s public database of BC Thoracic Outlet Syndrome cases, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a TOS Injury with a “mixed” prognosis.
In this week’s case (Singh v. Clay) the Plaintiff was involved in a total of 5 collisions. He alleged 4 of these caused or aggravated a Thoracic Outlet Injury and sued for damages. Fault was admitted in all actions.
Mr. Justice Greyell concluded that the Plaintiff did in fact suffer from Thoracic Outlet Syndrome and that the injury was caused, on an indivisible basis, from the collisions. Damages were assessed on a global basis. In awarding $65,000 for the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court made the following findings:
[81]Based on the medical reports and testimony of Drs. Keyes and Travlos, I am satisfied the plaintiff suffers from thoracic outlet syndrome which causes him difficulty holding his hands above his head, causes his left arm and shoulder to go numb such that he must lower his arm and “shake” the tingling and numbness out, and that this injury affects him both at work and in his home life as described earlier in this decision.
[82]He is also affected because his injury wakes him several times each night, causing him to be tired the following day.
[83]The plaintiff also suffered low back pain and persistent headaches which lasted for several years after the second accident but which have now cleared up…
[88]I find the prognosis for Mr. Singh is a mixed one. Dr. Keyes’ diagnosis is a difficult one to understand. On the one hand he has opined that there is likely some permanent injury to the plaintiff’s neurovascular bundle in the left thoracic outlet space. On the other hand, he has opined there is no permanent injury or damage of the neurovascular bundle in the left thoracic anatomic space. Dr. Keyes was clear however Mr. Singh would “almost certainly respond” without surgical intervention and expected that his symptoms would improve “and probably resolve over time”. Dr. Keyes’ prognosis for the plaintiff’s injuries is “very good to excellent” and he says that his recreational and employment activities would “not be significantly affected over the long term”. The caveat Dr. Keyes offered to this opinion in the penultimate paragraph was that “repeated injuries to the same areas… would be expected to result in similar symptoms and a more prolonged recovery…” Mr. Singh was involved in motor vehicle accidents on September 18, 2007 (which he did not tell Dr. Keyes about) and November 1, 2008, and the at-fault accident on March 19, 2007.
[89]At the time of trial Dr. Keyes had not seen the plaintiff for some four years.
[90]Dr. Travlos’s prognosis, based on an assessment made in April 2009 was much more guarded. As noted above he was of the opinion “there is no real expectation that further treatment is going to magically cure his symptoms.” Dr. Travlos recommended Mr. Singh commence a structured conditioning program outside the home. There was no evidence to suggest Mr. Singh has followed Dr. Travlos’s recommendation to engage in a conditioning program outside his home or that he take medication to help relieve his sleeping problems. Had he done so it is possible these problems would have resolved more quickly than they have.
[91]In my view the injuries suffered by Mr. Singh are more significant than those suffered by the plaintiff in Langley but less serious than those suffered by the plaintiffs in Cimino and Durand. I assess the plaintiff’s non-pecuniary damages at $65,000.
Just a brief reminder to all you BC articled students (and let’s not forget employers of BC articled students) that the Law Society’s Rule 2-32.01 is now in force which provides the following expanded role for services which Articled Students can provide:
LEGAL SERVICES BY ARTICLED STUDENTS
2-32.01 (1) Subject to any prohibition in law, an articled student may provide all legal services that a lawyer is permitted to provide, but the student’s principal or another practising lawyer supervising the student must ensure that the student is (a) competent to provide the services offered, (b) supervised to the extent necessary in the circumstances, and (c) properly prepared before acting in any proceeding or other matter. (2) An articled student must not (a) appear as counsel without the student’s principal or another practising lawyer in attendance and directly supervising the student in the following proceedings: (i) an appeal in the Court of Appeal, the Federal Court of Appeal or the Supreme Court of Canada; (ii) a civil or criminal jury trial; (iii) a proceeding on an indictable offence, unless the offence is within the absolute jurisdiction of a provincial court judge, (b) give an undertaking unless the student’s principal or another practising lawyer supervising the student has also signed the undertaking, or (c) accept an undertaking unless the student’s principal or another practising lawyer supervising the student also accepts the undertaking.
A regular reader of this blog shared some views with me recently and I thought these were worth repeating. These relate to chronic pain complaints and the value, if any, of video surveillance. Specifically the reader shared the following thoughtful observation: This Fall we will again be watching hockey on tv [ video evidence ] Can you tell me which player[s] are playing hurt ? And trust me …. they are …. some very much. We often know this at the end of the year …. as teams ” hide ” or deny that certain players are hurt … in that the opposing players do not focus on and target their injuries. Video tapes ? I don’t trust them
What do you say? Is there value to video surveillance? Does it effectively weed out fraudulent claims or is it an unnecessary invasion of privacy?
As always I welcome others views, feel free to leave a comment. You can click here to read a 2008 article sharing some of my views of video surveillance.
Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, excluding an expert report from evidence for multiple short-comings. The Court’s criticism included the fact that the report failed to properly set out the expert’s qualifications, offended the ‘ultimate issue‘ rule, failed to list documents relied on in forming the expert’s opinion and lastly for being ‘advocacy‘ in the guise of opinion.
In this week’s case (Turpin v. Manufacturers Life Insurance Company) the Plaintiff purchased travel insurance with the Defendant. While on a trip to California she fell ill and required medical treatment. Her expenses quickly grew and exceeded $27,000. The Defendant refused to pay relying on a pre-existing condition exclusion in the policy. The Plaintiff sued and succeeded.
In the course of the trial the Defendant tried to introduced a report from a doctor of internal medicine to “provide an opinion as to whether (the Plaintiff’s) medical treatment between October 5, 2007 and October 9, 2007 was the result of a pre-existing condition as defined in the Travel Insurance Policy“.
Mr. Justice Wilson ruled that the report was inadmissible for multiple reasons. The case is worth reviewing for the Court’s full discussion of the shortcomings of the report. In my continued effort to highlight expert reports being rejected for ‘advocacy’ I reproduce Mr. Justice Wilson’s comments on the frowned upon practice of experts using bold font to highlight portions of their opinion:
[29]Finally, the plaintiffs object that the report is advocacy on behalf of the defendants.
[30]This objection is based, in part, upon the author’s use of bold font and italicized portions of the report.
[31]In Warkentin v. Riggs, this court was faced with an expert’s report which adopted “… a particular format”:
He uses bold font to highlight words and phrases which benefit the plaintiff’s claim and support his diagnosis. This is apparent in his review of Ms. Warkentin’s history and medical reports. That which is contrary to the plaintiff’s claim or does not support his diagnosis is either omitted or presented in non-bolded font. This emphasis in support of the plaintiff’s claim and the exclusion of contrary matters is advocacy.
I adopt those comments as applicable in this case.
[32]This use of emphasis is not a practise to be encouraged. In this case, it may have been introduced by counsel’s letter of instructions, which suggested that the author may “indicate the relative degree of importance of any particular fact or assumption”.
[33]If the author of the report regards a factor as a major premise leading to the conclusion, then it should be so stated. Not left to unexplained emphasis in the body of the report.
[34] It was for those foregoing reasons that I ruled the report inadmissible.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, appointing a joint expert witness against the wishes of a Defendant in an on-going legal dispute. Although this recent case is not a personal injury claim I summarize the findings because it is the first case I’m aware of appointing a joint witness in a contested application under the ‘new’ BC Supreme Court Civil Rules.
In the recent case (Leer and Four L. Industries v. Muskwa Valley Ventures Ltd.) the Plaintiff and Defendants had a falling out in their commercial dealings. The Plaintiff sued seeking an order that the Defendant “purchase his shares at fair market value“. At a Case Planning Conference the Plaintiff sought an order that a joint business valuator be appointed to value the shares. The personal Defendant “vigorously oppose(ed)” the idea of a joint expert.
Ultimately Master Scarth granted the order and in doing so provided the following useful comments of general interest in applications for joint experts: [4]Rule 5-3(1)(k)(i) provides that at a case planning conference, a judge or master may order that expert evidence on any one or more issues be given by one jointly-instructed expert. Given the prohibition in Rule 5-3(2)(a) against hearing an application supported by affidavit evidence at a case planning conference, the court is required to rest any exercise of discretion on the pleadings and submissions to the extent that they do not require recourse to affidavit evidence: Przybysz v. Crowe, 2011 BCSC 731 at para. 59; Vernon v. British Columbia (Liquor Distribution Branch), 2010 BCSC 1688; and Jurezak v. Mauro, 2011 BCSC 512 – considering Rule 12-2(11)… [14]Rule 11-3 was recently considered in Benedetti v. Breker, 2011 BCSC 464. Master Baker noted that while joint experts are not new to litigation in British Columbia, the new rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite wider application of that process: paragraph 11… [18]The personal defendants object to paying for expert evidence which is part of the plaintiffs’ case. Why should they pay for a report which the plaintiffs require? The answer is because it is a proportionate way to conduct this proceeding.
[19]Read together with Rule 1-3 which sets out the object of the rules, Rule 11-3, like joint expert rules in other jurisdictions, is intended to reduce litigation costs and promote the conduct of a proceeding in ways consistent with the amount involved. While in this case, the amount at issue is not yet resolved and will not be until an opinion has been obtained, the buyout of Royer in 2009 gives some indication that the amount is likely modest. In such circumstances, proportionality suggests that an effort should be made to avoid duplication of the costs of obtaining an expert report which is the likely outcome if a joint report is not ordered.
[20]It follows that the parties are required to share the cost of the expert, at least at the outset. The ultimate determination as to costs is for the trial judge.
[21]I will add that a report as to value may benefit all parties in another way. The value of Leer’s shares has been an issue and a topic of discussion between the parties since 2009, when the personal defendants offered him a buyout. A valuation will provide the parties with the information required to settle this longstanding dispute, and may promote that result.
[22]I conclude that it is appropriate to exercise my discretion in favour of the plaintiffs and to make the order set out in Rule 5-3 that expert evidence as to valuation of Leer’s shares be given by a jointly appointed expert.
As previously discussed, Section 10 of the Worker’s Compensation Act operates to generally strip you of your right to sue if you are injured in the course of your employment by someone else in the course of their employment. One of most litigated issues with respect to this bar arises when people are in collisions commuting to and from work. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing such a scenario.
In this week’s case (Franzke v. Workers’ Compensation Appeal Tribunal) the Plaintiff was injured while driving home from her usual place of employment. She was employed in the insurance industry. Her job required her to have a Driver’s Licence and to occasionally work away from the office.
On the day of the collision the Plaintiff left her office early in the face of an expected snow storm. She took files home with her with an intention of working from home for the balance of the day and depending on road conditions perhaps for some time beyond that.
In the course of her lawsuit the Defendants argued that these circumstances brought the commute within the “course of employment” stripping her of the right to sue. The matter was put before the Workers Compensation Appeal Tribunal (WCAT) who agreed. While WCB’s Policy 18 states in part that “the general position is that accidents occurring in the course of travel from the worker’s home to the normal place of employment” is not an activity in the course of employment here the Plaintiff’s intention to work from home was crucial with WCAT finding that “the intention of the worker was given significant weight and was determinative“.
The Plaintiff asked the BC Supreme Court to review this decision arguing that it was patently unreasonable. Madam Justice Ross disagreed and refused to disrupt WCB’s decision. In doing so the Court reached the following conclusion: [132]I have concluded that the Original Decision was not patently unreasonable and that the hearing was fair with no denial of natural justice. In addition, I have concluded that the decision of the Reconsideration Panel to dismiss the application for reconsideration was correct. In the result, the petition is dismissed.
This week the BC Court of Appeal released reasons for judgement ordering a new trial following a chronic pain case which resulted in a $525,000 damage assessment.
In this week’s case (Houston v. Kine) the Plaintiff was injured in a 2006 collision. She allegedly suffered from PTSD and a chronic pain disorder as a result of the crash. The matter went to trial although did not conclude in the time initially allotted.
There was a 5 month gap before the trial recommenced. During this break ICBC undertook surveillance of the Plaintiff over two periods of time. The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court. As a result the trial judge refused to let the evidence in. The Court went further, however, and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.
The Defendants appealed arguing that the witnesses were wrongly excluded. The BC Court of Appeal agreed and found that while “the defendants’ choice at trial to withhold the existence of the videotapes….was inappropriate” and that this evidence was rightly excluded it was improper to exclude the witnesses themselves to testify. In ordering a new trial the BC Court of Appeal provided the following reasons:
[31]The obvious difficulty with the viva voce evidence was that the observers were unknown to the defendants prior to the hiatus in the trial. The earliest that they could have been identified was in November of 2009. By then, the plaintiff’s preparation for trial was all but over. To constrain the defendants’ ability to react to the plaintiff’s evidence to “prevent surprise or ambush” in my view unfairly restricted their ability to have the proceeding determined on its merits. As the trial judge accepted that there was no restriction on calling lay witnesses, she erred in imposing that restriction respecting witnesses who could comment on the plaintiff’s activities during the hiatus in the trial.
[32]The trial judge’s second reason for refusing to allow the observation witnesses to testify was that:
It would be inconsistent with my previous order and with the objects of the Rules, expressed in R. 1(5), “to secure the just, speedy and inexpensive determination of every proceeding on its merits,” to allow the defendants to, in effect, ambush the plaintiff with this evidence, which has been disclosed only recently.
[33]In my view the trial judge here misapplied Rule 1(5), focussing on speed in the completion of the proceedings at the expense of their merits. The Rule and the third factor in Stoneemphasize the importance of the determination of a proceeding on its merits. In order to determine a proceeding on its merits, the admissible evidence that is tendered by a party and is relevant to matters in issue should be considered.
[34]In addition, given that the original trial estimate was exceeded by the plaintiff’s case, necessitating the adjournment of the trial that caused the hiatus that brought about the acquisition of new evidence by the defendants, I am unable to accept that the delay resulting from the proposed evidence should have been treated any differently from the delay that was occasioned by the initial inadequate trial time estimate. The failure to do so prevented the determination of these proceedings on their merits. I conclude that the trial judge erred in law in refusing to permit the witnesses to give viva voce evidence at the trial…
[36]Here, the credibility of the plaintiff was a critical factor in the trial judge’s assessment of quantum, and the evidence of the observers was intended to directly address the plaintiff’s credibility. In my view, the refusal of the trial judge to permit the defendants to adduce evidence to challenge the plaintiff’s physical abilities at the date of the trial was unfair, and given the importance of this evidence to the ultimate award of damages for future diminished earning capacity and future cost of care, I see no alternative but to order a new trial on damages. I would thus allow the appeal and order a new trial.
When presenting an injury claim with a future care component expert evidence is often called to address not only the future care required, but also the cost of future care. These experts sometimes rely on hearsay evidence in discussing the costs of the items recommended for future care. Can this evidence be admitted? This question was squarely answered in a 2008 ICBC UMP Arbitration which I summarize in my continued effort to create a searchable UMP caselaw database.
In the 2008 decision (MEN NN and DN v. ICBC) the Claimants sought damages following the wrongful death of their father/husband following a motor vehicle collision. The matter was arbitrated under UMP. In support of their claim the Claimants sought to introduce an expert report from a rehabilitation consultant to address future care needs for the surviving family members. ICBC objected to this report on several grounds. One of ICBC’s objections was that the report relied on hearsay evidence in addressing future care costs. Arbitrator Yule rejected this argument and admitted the report (with a few modifications based on other objections). In addressing the hearsay component Arbitrator Yule provided the following useful reasons: 18. As noted previously, the Report as it applies to the claims of DN and NN also includes the commercial cost of various services such as courier service, handyman service, storage locker fees, taxis and airfares. The cost of various services is considered to be within the scope of opinion evidence customarily given by rehabilitaiton experts notwithstanding that, to some extent, it may be hearsay information obtained from other service providers. Cost of care expers routinely include informaiton regarding the costs of services in their reports. In Jacobson v. Nike (1996) BCLR (3d) 63, the cost of care experts were Ms. Schulstad, a nurse with experience and education in rehabilitation nursing, and Ms. Harris, whose background was in occupational therapy. Levine J. (as she then was) accepted these witnesses as qualified to provide expert evidence concerning both the care required and the costs of providing it. At paragraph 185 the Judge said: I am satisfied from the evidence of his injuries and function and of the clinical records that the plaintiff requires personal attendant care and homemaker services to sustain or improve his physical and mental health. I am also satisfied that consultants with the experience, skill and training of Ms. Schulstad and Ms. Harris are qualified to assess his specific care needs and to provide expert evidence concerning the care required to meet his medical needs and the costs of providing for them. In MacDonald v. Neufeld, [Vancouver Registry, September 3, 1993] the cost of care expert, Mr. Simpson, included in his report the cost of airplane tickets and other expenses for a travelling companion. 19. As a practical matter, the admissibility of costing information on this basis makes eminent sense. If it were not admissible as part of Ms. Stewart-Blair’s report, then one of the Claimants could herself make the same inquiries, but adducing the evidence in that fashion would be subject to the same objection as hearsay. Thus, in the absence of admissions, the various service providers themselves would have to give evidence which would be both an inconvenience to them and an inefficient use of Hearing time. Accordingly, I rule that the costs information in the Report of commercially provided services in relation to the claims of DN and NN is admissible.
For more on this topic from a Judicial authority, the latest case from the BC Court of Appeal is worth reviewing for their practical take on the role hearsay evidence can play in expert reports.
