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The New Rules of Court and the Prohibition of Expert Advocacy

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams.


While expert ‘advocacy‘ has always been prohibited, Rule 11-2 of the BC Supreme Court Civil Rules expressly imposes a duty on expert witnesses “to assist the court” and “not to be an advocate for any party“.  Experts need to specifically acknowledge that they are aware of this duty, author reports in compliance with this duty and testify in conformance with this duty.
Despite this expert advocacy still exists as was demonstrated in reasons for judgement released this week in the BC Supreme Court.
In this week’s case (Jampolsky v. Shattler) the Plaintiff was involved in 4 seperate collisions.  He sued for damages with his most serious allegation being a Traumatic Brain Injury (TBI).  Ultimately the TBI claim was dismissed with Mr. Justice Harvey finding that the Plaintiff’s chronic complaints were more plausibly explained by factors other than brain trauma.  Prior to doing so, however, the Court made the following critical findings of the expert retained by ICBC in the course of defending the claims:

[251] Dr. Rees is a neurologist. Since approximately 2004 his practice has been largely comprised of examining persons with suspected brain injuries on behalf of defendants, principally ICBC.

[252] In that period Dr. Rees had not examined a litigant whom he found to have suffered an MTBI where the symptoms lasted beyond two years. He opined that the plaintiff had not sustained an MTBI in the first accident or any of those which followed in August 1999…

[257] Dr. Rees initially testified that a Tesla 1.5 MRI could provide imaging of an area as small as 100 neurons in the human brain. I am satisfied that Dr. Rees was in error in this regard. Although counsel suggested, and Dr. Rees ultimately adopted, 126,000,000 as being the smallest grouping of neurons visible on the Tesla 1.5, counsel subsequently advised the Court of his own mathematical error resulting in agreement that the actual number was 126,000. While the difference between these numbers is significant, it still appears that Dr. Rees was outside his area of expertise and was “guessing” at the degree of resolution.

[258] Dr. Rees was also reluctant to acknowledge that brain trauma could occur without contact between the head and some other source. Although he acknowledged that an acceleration/deceleration injury could result in brain trauma, he confined such instances to situations where there as a concussive blast, such as that which was experienced by troops in Afghanistan when an I.E.D. exploded. He was resistant to the notion that an acceleration/deceleration injury of the type commonly seen in motor vehicles accidents could cause an MTBI

[259] A major difference in the opinion of Dr. Rees and Dr. Ancill is whether or not the plaintiff experienced a “credible event” which would account for brain trauma. During vigorous cross examination Dr. Rees acknowledged that he could not offer an opinion on the tensile strength of brain matter, and that an acceleration/deceleration impact could damage muscle tissue which he acknowledged is denser than brain matter.

[260] Dr. Janke, the other defence expert, and Dr. Ancill were both of the opinion that a force far less than that described by Dr. Rees could result in an MTBI.

[261] Dr. Rees accepted, without question, the veracity of the plaintiff when it came to maters related by the plaintiff which tended to negate or be neutral as to the existence of a brain injury, but questioned, without proper foundation, the plaintiff’s truthfulness if his answer to a particular question came into conflict with Dr. Rees’ rigidly held views as to the length of time the sequalae from MTBI could persist and the extent to which an MTBI could interfere with what he called core skills. He referred to the plaintiff’s response to queries regarding whether he had undergone any sleep studies for his reported apnea as “disingenuous.”…

[316] I place little or no reliance on the opinion of Dr. Rees. He assumed, for much of his testimony, the role of advocate as opposed to that of a disinterested and detached expert.

As recently discussed, the UK Supreme Court stripped expert witnesses of immunity exposing them to the threat of lawsuits for negligent services.  The law in BC currently does not permit this making judicial criticism the strongest remedy for experts who ignore the duties set out in the Rules of Court,

Plaintiff Unsuccessfully Sues for Being Run Over By Car While Cleaning It

Written by admin on . Posted in ICBC Liability (fault) Cases, Occupier's liability claims, Uncategorized.


Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing a personal injury lawsuit with a fairly unusual fact pattern.
In this week’s case (Biggan v. Fall) the plaintiff by counterclaim was employed as a housekeeper.  She was asked to clean her employers car so it could be prepared for sale.  The circumstances of the incident were as follows:

[8] She parked the car on the driveway and said she felt the rear wheels come in contact with the rock or piece of firewood.  She put the manual transmission in first gear, applied the hand brake and got out.  The car has an alarm system which sounds if the keys are left in the ignition, and as a result of hearing the chimes, she reached in, took the keys from the ignition, and placed them on the seat of the car.  She then started to walk back to the house to get some cleaning equipment.  She walked behind the car and as she did so, she noticed it was starting to roll backwards.  She moved out of the way and the car continued rolling backwards down the driveway towards the road.  Ms. Fall does not recall anything that happened after that point.

[9] When the car reached the Shawnigan-Mill Bay Road, it collided with the vehicles driven by Biggan and Leask.  The Biggan and Leask vehicles then collided with each other.  Although Ms. Fall does not recall doing so, it is apparent she ran beside the Scott vehicle as it rolled down the driveway.  A witness to the accident, Mr. Brian Mellings, observed her running beside the car and saw her become involved in the collision.  She somehow ended up under the Biggan vehicle and she suffered serious injuries.

She claimed the vehicle owner was liable for the crash pursuant to the Occupiers Liability Act.  Mr. Justice Bracken disagreed and dismissed the claim.  In doing so the Court provided the following reasons:
[29] Ms. Fall says the Scotts, as occupiers of the premises, owed her a duty to take reasonable care to ensure she was reasonably safe in using the premises.  She argues the risk of the car rolling down the driveway and her action in running beside it in an attempt to gain control of the car was a foreseeable risk of moving the vehicle out onto the driveway in the first place.  Ms. Fall says the risk of the accident occurring as it did was a reasonably foreseeable risk that should have been anticipated by the Scotts and they are therefore liable for failing to warn her not to use or move the vehicle:  Rendell v. Ewert (1989), 38 B.C.L.R. (2d) 1 and Chretien v. Jensen, [1998] B.C.J. No. 2938…

[46] There is nothing to suggest either Lloyd Scott or Stewart Scott were aware of any defect in the motor vehicle, nor is there any evidence to establish that there was any defect in the vehicle that could have caused it to roll backwards down the driveway.  Finally, in reacting as she did by attempting to follow the vehicle down the driveway, she assumed all risk of the injury that in fact resulted.

[47] I am not able to find any breach of their duties under the Occupiers Liability Act by the Scotts and the action on Ms. Fall’s counterclaim is dismissed.  The Scotts are entitled to their costs.

$50,000 Non-Pecuniary Damage Assessment for Sacroiliac Joint Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases.


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a Sacroiliac Joint injury following a motor vehicle collision.
In today’s case (Day v. Nicolau) the Plaintiff was injured in two separate collisions.  Fault for the crashes was admitted.  She suffered various soft tissue injuries the most serious of which was a sacroiliac joint injury.  By the time of trial her symptoms of pain persisted and were not expected to have further meaningful improvement.  In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Mr. Justice Wong provided the following reasons:

[34] From the evidence Ms. Day sustained a soft tissue injury in the two motor vehicle accidents.  She has not maintained the exercise and core strengthening regimen recommended by her treating doctors.  Without proper back care, the potential for flare ups and complications exist.

[35] It is unclear what state of recovery function Ms. Day could have obtained with proper back care and exercise.  All doctors indicate in their reports the importance of back care exercise.  Though their prognosis is guarded they seem to imply that with proper care there is still potential for return to functionality with only intermittent flare ups. ..

[46] Ms. Day is a 28 year old woman who has a chronic injury to her lower back and related sacroiliac joint injury and a less serious lasting injury to her neck and right shoulder.  She has experienced pain, discomfort and some limitations to enjoyment of her previous active life for almost five years and her future condition is guarded.

[47] I fix the non-pecuniary award at $50,000.

The BC Political Landscape and Tort Reform

Written by admin on . Posted in Tort Reform, Uncategorized.


This blog is not politically oriented, however, one issue I like to keep my eye on is so-called tort ‘reform’.  As previously discussed, tort reform generally refers to limiting the rights of those injured through the carelessness of others to the benefit of insurance company profits.   Ontario is currently undergoing such a proposed ‘reform’.
With the significant recent changes in BC’s political landscape I’ve been curious about our political parties views on tort reform.  When Mike de Jong was running for the BC Liberal leadership he was kind enough to respond to my question addressing some positive changes that can be made to BC’s wrongful death laws.
More recently Dave Eby has thrown his hat into the political ring taking on Christy Clark.  I asked him about his views on tort reform and he advised that he does not believe in limiting the rights of injury victims through tort ‘reform’ with the following exchange:

Dave’s response was welcome and I was impressed with his accessibility.  I have asked Christy Clark about her views on the topic but she has not yet replied.   If she is from the same school of thought as Mike de Jong I am cautiously optimistic that she is not a tort ‘reformer’ but would of course be happy to have a clear reply on the topic.
If anyone has any insights with respect to the BC Liberals and NDP’s views on so-called reform feel free to share your insight with me.

BC Court of Appeal Awards $200,000 for Chronic Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Court of Appeal addressing damages for chronic soft tissue injuries.
In today’s case (Taraviras v. Lovig) the Plaintiff was injured in a 2002 rear-end collision.  The Plaintiff suffered “primarily neck and back injuries with referred pain down his left leg“.  After a 10 day trial a Jury awarded the Plaintiff $691,000 in damages including $300,000 for non-pecuniary damages (pain and suffering and loss of enjoyment of life).
The Defendants appealed arguing this award was “wholly out of proportion to the loss (the Plaintiff) actually suffered”.  The BC Court of Appeal agreed and reduced the jury verdict by $100,000.   However, even after this reduction, this stands as one of the higher BC Injury damage assessments for chronic soft tissue injuries which are not totally disabling.  In concluding that this is a fair assessment the BC Court of Appeal provided the following useful reasons:

[34] This case is not one in which the victim has suffered catastrophic injury.  Mr. Taraviras’ permanent disability is, by all accounts, a moderate one, thus it is irrelevant how Mr. Taraviras’ injuries compare to those of the plaintiffs in the Supreme Court Trilogy (Moskaleva at para. 132). …

[36] In my review of the non-pecuniary jury verdict in this case, I must accept that the jury resolved all evidentiary conflicts in favour of Mr. Taraviras.  I have described some of his evidence and I proceed on the assumption that the jury did accept this evidence.  In other words, the question to be resolved is – taking Mr. Taraviras’ case at its most favourable, is the award nevertheless so exorbitant that it would shock this Court’s conscience and sense of justice? (Moskaleva at para. 116; Whiten v. Pilot Insurance Co., 2002 SCC 18)….

[55] Here, Mr. Taraviras testified that his life had, in almost all respects, been affected by this accident.  He could no longer work in the same robust way he had worked previously.  His renovation and property acquisition business was limited by his inability to do the heavy maintenance and renovation work.  He could no longer participate in his previous active sporting life.  His personal relationships were affected by his short temper and more sedentary lifestyle.  He complained of constant pain in his leg and back.  He could no longer enjoy his employment.  Taking the plaintiff’s case at its most favourable, I would conclude that Mr. Taraviras’ injuries in this accident had a devastating effect on his previously active and energetic life.  I must assume that the jury did not accept the proposition advanced by the defendants that his pre and post-accident injuries were causative.

[56] Even accepting Mr. Taraviras’ case as I have, I am of the view the award for non-pecuniary damages does require appellate intervention.  This is one of those awards that is so out of all proportion to the circumstances of the case that it would shock the conscience of the court to leave it undisturbed.  It is wholly out of proportion to the injuries suffered by Mr. Taraviras and must be set aside.  In granting considerable deference to the jury and using the judge alone and appellate cases as some guidance, I would reduce the award from $300,000 to $200,000.

BC Court Jurisdiction and Out of Province Collisions

Written by admin on . Posted in Uncategorized.


Reasons for judgement were released this week by the BC Court of Appeal demonstrating that it will be a rare circumstance where British Columbia Courts will have jurisdiction over a personal injury trial involving an out of Province collision.
In this week’s case (Dembroski v. Rhainds) the Plaintiff was involved in a car crash in Alberta in 2007.  The Plaintiff was a British Columbia resident and was in Alberta for a short while to do some work as a farrier.    The Plaintiff was injured and unable to perform her work.  She returned to BC shortly after the car crash.  She had the majority of her treatments in BC.
The Plaintiff sued the alleged at fault motorist for compensation in British Columbia.  The Defendant brought a motion to dismiss the claim arguing that BC Courts lack jurisdiction to preside overthis case.  The Chambers judge granted the motion and dismissed the lawsuit.  The Plaintiff appealed without success.  In dismissing the case the BC Court of Appeal held that there will be very few circumstances where a BC Court will have jurisdiciton over an injury claim involving a foreign collision.  The Court provided the following reasons:
[39] A number of previous cases in this jurisdiction have held that the residence alone of a plaintiff in British Columbia does not suffice to establish jurisdiction over a defendant resident outside of the province.  These cases include Jordan v. Schatz and Williams v. TST Porter dba 6422217 Canada Inc., 2008 BCSC 1315, 87 B.C.L.R. (4th) 179.  There must be something more, but what is that “more”?  The appellant suggests that since she has suffered damages here and the appellant and several potential witnesses are here, it would be appropriate for the Supreme Court of British Columbia to take jurisdiction over the action.  The appellant points to certain language in the above cases of Moran, Jordan, Pacific International Securities Inc. and Teja supportive of the thesis that a British Columbia court should be found to possess jurisdiction simpliciter over the respondents in this case…

[42] Moran and Stanway were both product liability cases in which it was held that the tort occurred in that jurisdiction in which harm accrued to a plaintiff via contact with a defective product.  The harm in each case was caused by an item that harmed the particular plaintiff in the place where that injured party resided.  That sufficed to found jurisdiction over a defendant who did not have any physical presence in such location.

[43] As can be seen from those cases, the place where the damage occurred via contact with the item was the crucial factor that underpinned the assumption of jurisdiction.  It seems to me that it was this type of situation that Cumming J.A. had in mind when he observed in Jordan, “Clear examples of connecting factors include the residency of the defendant in the jurisdiction or the fact that the tortious act was committed or damages suffered here” (para. 23).

[44] Jordan was a personal injury case arising out of a motor vehicle accident in another province and this Court held that the residence of the plaintiff in British Columbia did not suffice to found jurisdiction.  Although the plaintiff in that case was undoubtedly considered to suffer damage from the sequelae of the accident here, the incident causative of this damage occurred in Alberta and that was the place properly clothed with jurisdiction over a tort action.  Jordan differs from Moran and Stanway because in those latter cases the harm that resulted in damage was caused by contact between the plaintiffs and harmful objects in the jurisdictions where the respective plaintiffs resided.  No such occurrence constituted the foundation of the cause of action in Jordan, hence it was held the British Columbia courts could not properly take jurisdiction…

[51] It may be that Teja, which I observe was also decided prior to the coming into force of the CJPTA, could be viewed as somewhat of an outlier, whose reasoning should not be extended, but it seems to me that its result can be supported on its rather unusual facts.  It was a case with significant connections to British Columbia, since all parties resided here at the time of the accident and the only vehicle involved was registered here.  The defendant also attorned to this jurisdiction (see s. 3(b) of the CJPTA).  In the instant case, the vehicle of the defendants was an Alberta vehicle, and neither defendant had or has any connection to British Columbia.  They are furthermore unwilling to attorn to this jurisdiction, unlike the defendant in Teja.  I consider attornment to have been crucial to the result in Teja, and therefore a significant distinguishing feature between that case and the present litigation.

[52] In my opinion, the decisions of this Court in classes of cases similar to the instant case, such as Jordan, and the recent decisions of the Supreme Court of British Columbia in Roed andWilliams, are supportive of the decision of the chambers judge in the case at bar.  I am in agreement with the conclusion reached by the learned chambers judge and I would dismiss this appeal.

Document Disclosure Obligations and the Implied Undertaking of Confidentiality

Written by admin on . Posted in BCSC Civil Rule 7, Uncategorized. 69 Comments on Document Disclosure Obligations and the Implied Undertaking of Confidentiality


Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding that personal injury plaintiffs need to list and produce examination for discovery transcripts from previous claims dealing with similar injuries under Rule 7-1(1) of the Rules of Court.  This decision appears to me to be at odds with previous cases addressing this issue (you can click here to access my archived posts on this topic).  This issue may need to be dealt with by the Court of Appeal in order to have some certainty in this area of law.
In today’s case (Cochrane v. Heir) the Plaintiff was injured in a motor vehicle collision.  She sued for damages.  ICBC appointed the same lawyer to defend the claim that defended a previous lawsuit of the Plaintiffs.  In the previous lawsuit ICBC’s lawyer conducted an examination for discovery of the Plaintiff.  He applied for an order to set aside the ‘implied undertaking of confidentiality’ that applied to the former transcript.
Mr. Justice Harris granted the application but went further and ordered that Plaintiffs are obligated to list and produce previous discovery transcripts.  Mr. Justice Harris provided the following reasons:

[5] In my view, there should be no need to relieve counsel for the defendants of his obligation under the implied undertaking. The documents are either in the possession of the plaintiff or they were in her control or possession. The plaintiff has an independent obligation to list and produce them further to her obligations under Rule 7-1(1)(a)(i) of the Civil Rules. The plaintiff cannot shield herself from her obligation to list and produce relevant documents by invoking the implied undertaking against opposing counsel who came into possession of those documents in the previous litigation: see Wilson v. McCoy, 2006 BCSC 1011.

[6] Given that the documents in issue have not yet been listed and produced by the plaintiff, I am prepared to relieve counsel for the defendants of the implied undertaking in respect of the transcripts of the examinations for discovery conducted in the previous action and the documents in issue. The implied undertaking exists to protect privacy rights and to facilitate the free flow of information in litigation by providing an assurance that information compelled to be provided in discovery is not used for collateral purposes.

[7] In Juman v. Doucette, [2008] 1 S.C.R. 1011, the following is said that governs the exercise of my discretion to relieve a party or counsel of the obligations imposed by the implied undertaking:

[35]      The case law provides some guidance to the exercise of the court’s discretion. For example, where discovery material in one action is sought to be used in another action with the same or similar parties and the same or similar issues, the prejudice to the examinee is virtually non-existent and leave will generally be granted. See Lac Minerals Ltd. v. New Cinch Uranium Ltd. (1985), 50 O.R. (2d) 260 (H.C.J.), at pp. 265-66; Crest Homes, at p. 1083; Miller (Ed) Sales & Rentals Ltd. v. Caterpillar Tractor Co. (1988), 90 A.R. 323 (C.A.); Harris v. Sweet, [2005] B.C.J. No. 1520 (QL), 2005 BCSC 998; Scuzzy Creek Hydro & Power Inc. v. Tercon Contractors Ltd. (1998), 27 C.P.C. (4th) 252 (B.C.S.C.).

[8] The application of counsel for the defendants is granted.

Saanich Police Officer Found "Grossly Negligent" For Fatally Shooting Disturbed Man

Written by admin on . Posted in Uncategorized. 89 Comments on Saanich Police Officer Found "Grossly Negligent" For Fatally Shooting Disturbed Man


(UPDATE January 10, 2013 – In reasons for judgement released today the BC Court of Appeal ordered a new trial in the below discussed case finding that the trial judge’s reasons did not adequatly address the important evidence presented at trial)
Important reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, addressing lawsuits for damages against police officers when excessive force is used in the line of duty.
This week’s case (Camaso v. Egan) has been covered in the conventional press and I don’t intend to repeat all the well publicized details.  From a legal perspective, however, this case is useful for anyone interested in the law of police officer liability in British Columbia.
In this week’s case the Saanich Police Department were called to deal with a disturbed man.   Constable Dukeshire was one of the officers who responded to this call.  Shortly after encountering the disturbed individual Constable Dukeshire shot him several times resulting in his death.  He was found negligent making the City of Saanich liable for his actions under the principles of vicarious liability.  Damages of almost $350,000 were awarded to the disturbed man’s survivors under the BC Family Compensation Act.
Mr. Justice Burnyeat of the BC Supreme Court went further and found the officer grossly negligent for the death.  Paragraphs 269-308 are worth reviewing in full for anyone interested in this area of law.  Some of the highlights of Mr. Justice Burnyeat’s reasons were as follows:

[272]It is not in dispute that Constable Dukeshire shot Mr. Camaso.  Having established that, the onus shifts to Constable Dukeshire to establish that the shooting was justified.  In Prior v. McNab (1976), 16 O.R. (2d) 380 (Ont. H.C.), Reid J. stated in this regard:

… It is enough to allege and prove an assault.  Plaintiff need not prove that the force used was excessive.  He need prove only that it was used upon him.  The onus of proving that the force was not excessive would lie on the policeman.  This is clear from the decisions of our Court of Appeal.

The onus on a plea of justification in the use of force lies on him who asserts it: Miska v. Sivec, [1959] O.R. 144, 18 D.L.R. (2d) 363.  This applies to one who sets up the defence of self-defence (as in Miska) or on one who relies on a statutory duty:  O’Tierney v. Concord Tavern Ltd., supra, per Roach, J.A., who said, at p. 534:

It was implicit in a plea of justification even based on a statutory duty that the degree of force used was not excessive and the party making that plea must prove it.

That onus would lie on the police if sued. (at p. 385)…

[282]The “Use of Force Continuum” that is taught to all officers and which is part of the Policy of the Saanich Police Department provides for a continuum from “presence” to “communication” to “open hand control” to “taser” to “capsaicinoid aerosols” (pepper spray) to “empty hand impact techniques” to “impact weapons” to “lateral neck restraint” to “firearms”.

[283]After Mr. Camaso came out from behind his vehicle the first time, Constable Dukeshire moved directly to “firearms” without going through any of the earlier stages of the continuum.  After Constable Dukeshire saw that Mr. Camaso was not holding a weapon which could cause him harm from afar, Constable Dukeshire failed to deescalate the situation in order to establish “presence” and in order to establish “communication”.  This failure to do so breached the duty of care which Constable Dukeshire owed to Mr. Camaso.

[284]Rather than calling for backup, Constable Dukeshire pursued Mr. Camaso on his own.  Saanich Police Department Policy required Constable Dukeshire to engage a supervisor.  He failed to do so.  Saanich Police Department Policy required Constable Dukeshire to take charge and coordinate the efforts of the other two Constables.  He did not do so.  Rather than pursuing Mr. Camaso as the leader of a team or as part of a team, Constable Dukeshire pursued Mr. Camaso without the knowledge of the location of Constables McNeil and Murphy, and without attempting to coordinate their activities with his own.  No call was made by Constable Dukeshire for a supervisor to coordinate activities.  No attempt was made by Constable Dukeshire to allow Constables McNeil and Murphy to catch up to him in order that they could assist him in apprehending Mr. Camaso under the Mental Health Act….

[289]It was not reasonable for Constable Dukeshire to continue to aim his gun at Mr. Camaso when Mr. Camaso appeared to be complying by going down onto the ground as was requested by Constable Dukeshire.  His service revolver should have been holstered….

[295]Even with one or two potential weapons in Mr. Camaso’s hands, Constable Dukeshire who weighed almost one hundred pounds more and stood almost a foot taller than Mr. Camaso could not have had a reasonable belief that it was necessary to shoot Mr. Camaso for his own preservation.  It was always apparent to Constable Dukeshire that Mr. Camaso did not have a gun in his hands. …

[299]Putting myself in the position of Constable Dukeshire or putting a reasonable officer in the position of Constable Dukeshire, it is not reasonable to conclude that it is part of the responsibility of Constable Dukeshire to shoot Mr. Camaso three times and it is not possible on reasonable grounds to conclude that the force he used was necessary for the purpose of protecting himself and others from imminent or grievous bodily harm.  Putting myself in the position of Constable Dukeshire or putting even an inexperienced officer in the position of Constable Dukeshire, it is not possible on reasonable grounds to conclude that the force that was used was necessary.  Constable Dukeshire did not act on reasonable grounds when he shot Mr. Camaso.

[300]I find that Constable Dukeshire breached the duty of care owed to Mr. Camaso when he did not use the least amount of force necessary to carry out his duties, when he failed to remain a safe distance away from Mr. Camaso, when he failed to properly assess the situation before approaching Mr. Camaso, when he failed to plan an appropriate method to deal with the situation, when he advanced on Mr. Camaso thereby failing to deescalate the situation once it appeared that Mr. Camaso was beginning to comply with his commands, and when he failed to wait for backup support.  Constable Dukeshire breached his duty owed to Mr. Camaso to use only so much force as was reasonably necessary to carry out his legal duties.

[301]In the circumstances, I find Constable Dukeshire liable in negligence because I find that there was duty of care owed to Mr. Camaso, that there was a breach of that duty of care, and that the breach of the duty of care caused the death of Mr. Camaso.

[302]At the same time, Constable Dukeshire has failed to establish that the shooting was justified and that the force that he used was not excessive.  In fact, the Plaintiffs have shown on the balance of probabilities that the force that was used was excessive.  I find that Constable Dukeshire cannot rely on s. 25 of the Criminal Code of Canada or the provisions of ss. 16 and 28 of theMental Health Act.  His use of force was not justified.  I cannot find that Constable Dukeshire believed on reasonable grounds that it was necessary for his self-preservation to use the force that he did.  I have reached the conclusion that Constable Dukeshire is liable in damages as a result of his failure to act in good faith and with reasonable care…

307]In reviewing all of the circumstances of this case, I conclude that Constable Dukeshire was grossly negligent.  When the pursuit of Mr. Camaso commenced, Constable Dukeshire was not involved in a dangerous activity.  However, as soon as Constable Dukeshire removed his service revolver from its holster and aimed it at Mr. Camaso, he was involved in an activity where it is plain that the magnitude of the risks involved were such that more than ordinary care had to be taken.  If more than ordinary care was not taken, a misstep or a mishap was likely to occur such that loss of life or serious injury would be almost inevitable.  More than ordinary care was not taken.  The loss of the life of Mr. Camaso resulted.  I also find Saanich vicariously liable for the damages caused by Constable Dukeshire.

BC Court of Appeal Advises Litigants Not to get Carried Away With Future Care Claims

Written by admin on . Posted in Cost of Future Care Cases, Uncategorized. 60 Comments on BC Court of Appeal Advises Litigants Not to get Carried Away With Future Care Claims

Reasons for judgment were released this week by the BC Court of Appeal addressing damages for cost of future care following long term non-catastrophic injuries.
In today’s case (Penner v. ICBC) the Plaintiff was injured in a 2005 collision.  Most of his injuries resolved however he was left with long-term difficulties as a result of a post-traumatic chronic patellar tendinopathy (a knee injury).
At trial the Plaintiff was awarded just over $550,000 in total damages.  ICBC appealed several aspects of the judgement without success.  The Plaintiff’s award for cost of future care, however, was reduced by the Court of Appeal.
The Trial Judge made the following award for future care needs:

Future home maintenance

$14,600.00

Yard maintenance

$39,200.00

Housekeeping assistance

$38,000.00

Cold packs, heating pads and bath mats

$1,825.00

Safety bars in the bathroom

$200.00

Psychotherapy treatments

$3,000.00

Attendance at a fitness centre or community centre

$13,500.00

Medication

$10,000

TOTAL:

____________

$120,325.00

The BC Court of Appeal reduced this assessment by about $80,000 and in doing so provided the following reasons reminding litigants not to get carried away when dealing with future care costs:

[13] Ms. Katalinic drew our attention to the Court’s comments in Travis v. Kwon, 2009 BCSC 63, where Johnston J. said this about claims for damages for future care costs:

[109]    Claims for damages for cost of future care have grown exponentially following the decisions of the Supreme Court of Canada in the trilogy of decisions usually cited under Andrews v. Grand & Toy, Alberta Ltd., [1978] 2 S.C.R. 229, [1978] 1 W.W.R. 577.

[110]    While such claims are no longer confined to catastrophic injury cases, it is useful from time to time to remind oneself that damages for future care grew out of catastrophic injuries and were intended to ensure, so far as possible, that a catastrophically injured plaintiff could live as complete and independent a life as was reasonably attainable through an award of damages.

[111]    This is worth mentioning because the passage of time has led to claims for items such as, in this case, the present value of the future cost of a long-handed duster, long-handed scrubber, and replacement heads for the scrubber, in cases where injuries are nowhere near catastrophic in nature or result.

This is a reminder that a little common sense should inform claims under this head, however much they may be recommended by experts in the field.

Joint Experts and the New Rules of Court

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 5, independent medical exams, Uncategorized. 84 Comments on Joint Experts and the New Rules of Court


Can the BC Supreme Court order that parties use a joint expert in a personal injury trial against the wishes of one of the parties?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing this question.
In today’s case (Benedetti v. Breker) the Plaintiff was involved in a 2005 collision.  He was 17 at the time and allegedly sustained a brain injury with psychiatric consequences.  The Plaintiff brought an application asking that the Court order that Dr. O’Shaugnessy be appointed as a joint expert in the lawsuit.  The Defendant objected to having a joint expert.  Master Baker dismissed the motion and in doing so found that the Rules of Court do not permit a joint expert to be appointed over the objection of a party unless its done at a Case Planning Conference.  The Court provided the following reasons:

[11] Jointly appointed experts are not new to litigation in British Columbia.  In the family law context section 15 of the Family Relations Act has, for over 30 years, provided for the appointment of experts to investigate and prepare custody and access reports.  Realty appraisers are also often jointly appointed and instructed in family proceedings.  It is not all that unusual to encounter jointly-instructed experts in construction disputes.  But the new Rules clearly have brought greater focus and emphasis to the appointment of joint experts and invite the wider application of that process.

[12] Having said that, I agree with Mr. Nugent that this application does not follow the correct procedure for such an appointment.  He is correct in his analysis and that the only provision in the new Rules for the appointment of a joint expert over the wishes of one or both of the parties is in Rule 5-3(1)(k)(i), authorizing the presiding Judge or Master to order

that the expert evidence on any one or more issues be given by one jointly-instructed expert

Rule 11-3, he correctly argues, only permits the court to direct who that expert will be, or other terms ancillary to the appointment.  Rule 11-3 assumes that either the parties have agreed to the concept of a joint expert, or that the court has already ordered one in a CPC.  Neither of those assumptions apply in this case.

[13] It is not for me to theorize the reasons behind Rule 11-3’s current form, or why the only provision for the court, of its own volition, to appoint a joint expert is found in the CPC rule.  Suffice it to say and conclude that the Attorney General’s Rules Revision Committee’s purpose and the legislative intent was to separate the aspects of the appointment accordingly and to leave the court appointment process in the less formal CPC procedure.

[14] Even if the authority did lie in Rule 11-3, however, I agree further with Mr. Nugent that it would not be an appropriate order in this case.  This jurisdiction is blessed with a choice of numerous medical legal experts who could function as a joint expert in this matter.  By no means is Dr. O’Shaughnessy the only suitable choice as joint expert.  To appoint him, however, is to deprive the defence of a significant or potentially significant trial stratagem.  Wilson, C.J.S.C. in Milburn et al v. Phillips long ago described the purpose of an IME: “…to put the parties on a basis of equality” or, as it is commonly offered in chambers, to level the playing field.  The plaintiff has received treatment from at least two psychiatrists and has seen a neuropsychologist (par. 3, above).  The former were, to be sure, treating physicians, but it is not clear whether the latter was for treatment or for medical-legal consultation.  Given these facts, the defence should not be deprived of unilateral access to the one psychiatric expert that it chose and notified some 15 months before this application.

[15] The accompanying argument also has merit: should Dr. O’Shaughnessy’s conclusions not assist the defence, counsel can instruct him to not prepare a report.  In such an instance Dr. O’Shaughnessy’s objective observations, test results, or the like may well be discoverable but he would not be obliged to give or disclose his opinion to the plaintiff.  This is an important tool in the defence toolkit and should not be casually ignored.

[16] Finally, while proportionality is a laudable goal and should factor into all decisions under the Rules, in this case I doubt its applicability.  With five medical reports (privileged to date, recall) with the plaintiff, it seems unlikely that proportionality will be served by directing that a sixth, that of Dr. O’Shaughnessy, be a joint report.

[17] For these reasons the application is dismissed.