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ICBC Medical Exams and Secret Tape Recordings

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized.


Further to my previous post discussing the topic of taping independent medical exams, reasons for judgement were released today demonstrating that BC Courts are not very receptive to such evidence if secretly obtained.
In the 2006 case of Wong v. Wong the BC Court of Appeal made it clear that permission for a Plaintiff to record a defence medical exam will rarely be granted.  Sometimes Plaintiff’s have recorded such exams without seeking the court’s permission first.  While the secret audio recording of an independent medical exam by a participant is not necessarily a criminal offence in Canada, it is frowned upon.   One remedy a Court can exercise when presented with such evidence is to simply exclude it from trial.  Today’s case used exactly this remedy.
In today’s case (Anderson v. Dwyer) the Plaintiff was injured in a 2004 rear end crash.   ICBC, on behalf of the Defendant, admitted fault for the accident but disputed the extent of the Plaintiff’s injuries.  In the course of the lawsuit the Plaintiff attended a medical exam with Dr. Locht, an orthopaedic surgeon selected by ICBC.  The Plaintiff surreptitiously recorded this exam and then her lawyer tried to make use of this recording at trial.  Mr. Justice Schultes was not receptive to this and disallowed the use of this recording for cross examination purposes.  While the reasons for judgement did not have an analysis of why the Court used this remedy the following was highlighted:

[12] The plaintiff also admitted surreptitiously recording her examination by Dr. Locht, the orthopaedic surgeon who conducted an independent medical examination of her on behalf of the defendant. ( This came to light as a result of an objection by the defendant’s counsel during the cross-examination of Dr. Locht. The plaintiff’s counsel did not use the transcript any further after the objection and nothing in my analysis of Dr. Locht’s evidence turns on its use.)

[13] Her explanation for this action was that she wanted an accurate record of everything that was said during the examination and was concerned that she would not be able to recall it herself without assistance. She felt she had been treated disrespectfully by representatives of the Insurance Corporation of British Columbia during a previous meeting about this litigation and, I gather, that as a result she was suspicious of how the examination would be conducted.

[14] She maintained that she did not originally intend to use the recording in the litigation but that a friend had typed it up for her shortly before the trial so that she could refresh her memory and at that point she found discrepancies between the transcript and Dr. Locht’s report. She intended it to be used during cross-examination only if “the truth wasn’t coming out” in his evidence…

[43] It was suggested to Dr. Locht that his report presented some of the plaintiff’s symptoms in a misleading way. For example, he described her as having “no sleep disorder”, although she told him that her neck pain woke her several times throughout the night. His explanation was that because she was still getting six hours of sleep per night, in total, he did not consider that she had a sleep disorder. Similarly, he described the plaintiff as being “physically capable” of continuing all work, household, and recreational activities that she could do before the accident, despite her descriptions of experiencing severe pain (and in one case nausea) after engaging in them. He explained that his determination that a person is physically able to perform an activity does not depend on whether she in fact avoids that activity because it causes her pain…

[49] With respect to the plaintiff’s general credibility, I did not find her recording of the examination by Dr. Locht, her failure to disclose potentially relevant documents, or her “hands on” involvement in this litigation to be as significant as the defendant suggested. However improper surreptitious recording of medical interviews may be, it appeared to me that this recording was a reflection of the plaintiff’s suspicious and hostile view of ICBC and of her desire to protect herself from the unfair treatment that she expected to receive from its representative, rather than of any desire to manipulate the evidence.

Given the very important role expert witnesses play in injury litigation it is fair to debate whether tape recordings should routinely be used to add greater objectivity to the IME process.  Unless and until this comes about our Court’s will continue to struggle with the use this evidence will be put to when parties choose to obtain evidence through surreptitious recording.

Agony of Collision Explained

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 109 Comments on Agony of Collision Explained


This morning I was doing some quick research on the law of “agony of collision” and turned to my favourite practice guide for a quick answer.  Surprisingly I could not find a chapter discussing this topic so thought I would write my own summary.
In British Columbia our Courts have applied the “agony of collision” doctrine when discussing the issue of fault for a car crash when a motorist is faced with an imminent danger.   In these circumstance it is unfair to judge the reactive steps a motorist takes with 20/20 hindsight.  Instead the actions of the motorist need to be assessed with the reality of the “agony of collision” in mind.
This doctrine was summarized well in two BC cases I dug up today.  The first is Gerbrandt v. Deleeuw where Mister Justice Hunter stated as follows:

10           An often quoted summary of the law concerning the agony of collision is found in an old text, Huddy on Automobiles, 7th Ed., page 471 and page 335 (this passage is relied upon by the Saskatchewan Court of Appeal in English v. North Star Oil Limited , (1941) 3 W.W.R. 622 (Sask. C.A.) and Reineke v. Weisgerber , (1974) 3 W.W.R. 97 (Sask. Q.B.)):

” Under circumstances of imminent danger an attempt to avoid a collision by turning one’s course instead of stopping the vehicle is not necessarily negligence.  Or an attempt to stop when a turn would have been a more effective method of avoiding the collision is not necessarily negligence . . . one who suddenly finds himself in a place of danger and is required to consider the best means that may be adopted to evade the impending danger is not guilty of negligence if he fails to adopt what subsequently and upon reflection may appear to have been a better method, unless the emergency in which he finds himself is brought about by his own negligence.”

11           In Gill v. C.P.R. , (1973) 4 W.W.R. 593 Mr. Justice Spence speaking for the court said the following:

” It is trite law that, faced with a sudden emergency the creation of which the driver is not responsible, he cannot be held to a standard of conduct which one sitting in the calmness of a Courtroom later might determine was the best course … “

The doctrine is traced back to even deeper roots by the BC Court of Appeal in Tubbs v. O’Donovan where the BC High Court cited cases dating back to the early 1900’s applying this doctrine.  The Court held as follows:

Perfection is not demanded in emergent circumstances, as was well explained many years ago by this Court in Wood and Fraser v. Paget (1938), 53 B.C.R. 125 (C.A.), when it adopted this passage from Bywell Castle(1879), 4 P.D. 219 (C.A.):

For in my opinion the sound rule is, that a man in charge of a vessel is not to be held guilty of negligence, or as contributing to an accident, if in a sudden emergency caused by the default or negligence of another vessel, he does something which he might under the circumstances as known to him reasonably think proper; although those before whom the case comes for adjudication are, with a knowledge of all the facts, and with time to consider them, able to see that the course which he adopted was not in fact the best.

and this passage from Wallace v Bergius, [1915] S.C. 205, at 210:

I think the driver of a motor car is in the same position as the master of a ship in this respect, that if at the last moment he reasonably judges that a collision is absolutely inevitable unless he does something, and if that something might avoid a collision, he acts perfectly reasonably in taking that course.

$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury

Written by admin on . Posted in ICBC Shoulder Injury Cases, Uncategorized.


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.
In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.”
ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.

Winning Courtroom Strategies – Chambers Tips

Written by admin on . Posted in Civil Procedure, Uncategorized. 115 Comments on Winning Courtroom Strategies – Chambers Tips


When the parties to a lawsuit in the BC Supreme Court can’t agree on their respective rights and obligations under the Rules of Court a Judge or Master can be asked to decide in a “chambers application“.
When appearing in Chambers it is important to persuasively advance your position.  Focused and disciplined submissions will maximize your chances for a favourable outcome.   So how should you structure your argument?
Recently a great summary was provided by Madam Justice Helen MacLeod-Beliveau in a continuing legal education seminar for the Ontario Bar Association.  She shared her insights from a judge’s perspective. Modifying the tips to a lawyer’s perspective the following useful outline can be followed:
1.  What order you want the Court to make?
2.  What are the legal issues in your dispute?
3.  Which Rule(s) of Court are you relying on in support of your application?
4.  What are the crucial facts of your case?
5.  What are the leading cases applying the Rule(s)?
6.  Explain why the Judge should grant the order.
7.  Sit Down!
8.  After your opponents submissions explain where they have clearly erred.
9.  Don’t re-argue your motion in your response to your opponent’s submissions.

Infant Injury Claims in British Columbia and Conflicts of Interest

Written by admin on . Posted in Civil Procedure, Uncategorized.


When an infant (for the purposes of civil lawsuits anyone under 19 years of age is considered an ‘infant’ in British Columbia) is injured and wants to sue for damages they can’t start a lawsuit on their own.  They must do so through an adult ‘litigation guardian‘.
For obvious reasons, it is common for a parent to fill the role of litigation guardian.  Oftentimes in infant injury claims Defendants argue not only that the child is to blame for the accident but also that the child’s parents are to blame for failing to adequately supervise their children.  If this defence is raised against a parent litigation guardian it can place them in a conflict of interest.  So what can be done in this situation?  Reasons for judgement were released demonstrating one possible outcome to such a fact pattern.
In today’s case (Gill v. Morin) the Plaintiff was “grievously hurt” when his ATV struck or was struck by a car driven by the Defendant.  He started a lawsuit against the motorist with his mother acting as litigation guardian.  The Defendant denied fault and argued that the Plaintiff’s mother was to blame for “failure to adequately supervise (her) son”.
Once placed in this conflict of interest the Plaintiff’s mom applied to the Public Guardian and Trustee (“PGT”) and asked them to take over the lawsuit.  The PGT refused to do so unless they were “insulated from any claim for costs” in the event it turned out to be a losing lawsuit.
The parties turned to the Court for a solution.  The Plaintiff asked the Court to order that the PGT act as litigation guardian.  The PGT opposed this arguing that the lawsuit should simply be put on hold until the infant becomes an adult.  The Defendant opposed the PGT’s position arguing this would result in unfair delay.
The Court ultimately sided with the PGT and held that the lawsuit should be put on hold until the infant’s 19th birthday and from there he could decide whether to carry on with the lawsuit.  Master Keighley provided the following analysis:

[32] It is indeed regrettable that this defendant, who may eventually be found to be blameless with respect to this accident, may be obliged to wait several more years for the issues of liability and perhaps quantum to be resolved, but in the absence of any specific evidence, I am not prepared to find that the defendant is prejudiced by a stay of this action until the plaintiff obtains the age of majority. The limitation for this cause of action will not begin to run against the infant plaintiff until he reaches the age of majority on February 2, 2012 and it seems to be the defendant is no more prejudiced by a stay of proceedings then he would be had the plaintiff waited until then to commence this action.

Result

[33] In the result then, Piar will be removed as litigation guardian forthwith. The third party’s application to appoint the PGT as litigation guardian is dismissed. The action will be stayed until the infant plaintiff reaches the age of majority. Should counsel be unable to resolve the issue of costs, that issue may be brought back before me.

If you are faced with a similar dilemma this case is worth reviewing in full as the Court summarizes a handful of useful precedents disposing of similar applications at paragraphs 16-30 of the reasons for judgement.

Cost of MRI and Medical Report Ordered By Lawyer Disallowed

Written by admin on . Posted in Civil Procedure, Uncategorized. 57 Comments on Cost of MRI and Medical Report Ordered By Lawyer Disallowed


The winning side to a lawsuit in the BC Supreme Court is allowed to recover reasonable disbursements.  Some of the greatest costs of advancing injury lawsuits are those associated with expert medical evidence.  Today, reasons for judgement were released by the BC Supreme Court, Vancouver Registry, considering two common disbursements of Plaintiff lawyers in ICBC injury lawsuits; Private MRI’s, and medico-legal reports.
In today’s case (Farrokhmanesh v. Sahib) the Plaintiff was injured in two BC car crashes.  He settled his claims for $42,000 plus costs and disbursements.  The parties could not agree on some of the disbursements and the BC Supreme Court was asked to resolve the dispute.  The two biggest items in dispute were private MRI’s ordered by the Plaintiff’s lawyer and a medico-legal report from a psychologist.  Both of these items were disallowed as unreasonable expenses.

  • MRI

The Plaintiff’s lawyer sent his client for a private MRI to better investigate a shoulder injury.   The two scans cost just over $2,000.  The Plaintiff’s lawyer gave the following explanation for incurring this expense in the prosecution of the claim:

The plaintiff claimed damages herein as a result of injuries she sustained to both her neck and trapezius (shoulder area). Her symptoms persisted for years after the accident and were continuing when I made arrangements to have the plaintiff undergo magnetic imaging. I wanted to obtain the best possible imaging in order to ascertain the nature and extent of the plaintiff’s injuries and to uncover objective evidence of injury…

I ordered the scans because in my view presentation of my client’s claim required it. The plaintiff had been off work for a long time and had continuing complaints. These pain symptoms were also causing significant depression. I knew the fact of whether or not there were objective signs of injury as opposed to only subjective complaints was going to be an important issue at trial and thus I ordered the scans to obtain evidence going to this issue.

I knew when I ordered the scans that upon resolution of the subject claims the client would likely be required to sign a release thereby ending her ability to make any further claim for damage, on a permanent basis, to her neck and shoulder. Knowing this and the fact I was responsible for giving advice to the plaintiff regarding her injury and damages and the release, I ordered the scans to ensure there was no latent injury not previously uncovered. This was one of the reasons I ordered the scans. The plaintiff herein was going to forever give up her right to sue in connection with these injuries and thus it was my view that it was important to have the scans undertaken. In fact it was a term of the settlement herein that the plaintiff sign an ICBC form of release.

Registrar Sainty disallowed these disbursements providing the following reasons:

[38] The test for determining whether a disbursement ought to be allowed is:

…whether at the time the disbursement or expense was incurred it was a proper disbursement in the sense of not being extravagant, negligent, mistaken or a result of excessive caution or excessive zeal, judged by the situation at the time when the disbursement or expense was incurred”. (Van Daele v. Van Daele, [1983] B.C.J. No. 1482; 56 B.C.L.R. 178 (C.A.) (at para. 109))

[39] The provisions of Rule 57(4) of the Rules of Court relating to the Registrar’s discretion to award disbursements are broad. In general:

The registrar must consider all of the circumstances of each case and determine whether the disbursements were reasonably incurred and justified. He must be careful to balance his duty to disallow expenses incurred due to negligence or mistake, or which are extravagant, with his duty to recognize that a carefully prepared case requires that counsel use care in the choice of expert witnesses and examine all sources of information and possible evidence which may be of advantage to his client. (see Bell v. Fantini(1981), 32 B.C.L.R. 322 (S.C.)) at para. 23.))..

[44] I am going to disallow the claim for reimbursement for the two MRI scans. I cannot accede to Mr. Fahey’s argument that simply because he, as counsel, thought it was necessary to obtain MRI scans I ought not to question that decision unless I find it to be extravagant or overly zealous. In my view, and I am going to expand on what Registrar Blok held in Ward v. W.S. Leasing Ltd., to be allowed as a necessary and proper disbursement, there must be some medical reason for ordering an MRI. It is not simply enough that counsel seeks some (potential) objective evidence of an injury. Nor is it enough that counsel wishes to ensure that there is no latent injury such that his client might sign the standard release required. There is always a risk in personal injury litigation that a new injury or an injury that has not yet been determined might be found following settlement. That is simply a risk of litigation and a risk of settlement.

[45] I am not satisfied on the evidence before me that costs of the MRI scans were necessarily or properly incurred in the conduct of the proceeding and I will not allow them.

  • Psychologists Medico-Legal Report:

The other disputed item was a medico-legal report from a psychologist.   The Plaintiff retained the services of both a psychologist and a psychiatrist.  They both authored reports addressing the Plaintiff’s injuries.  The cost of the psychologist’s report was near $4,000.  The Defendant argued it was unreasonable for the Plaintiff to retain both experts stating that “(either) one of them could have provided the expert evidence required“.  Registrar Sainty agreed and disallowed this disbursement.  In doing so the Court reasoned as follows:

[52] I am not convinced, on the evidence before me, that it was necessary and proper to hire both experts given that their expertise clearly overlaps and each used similar methodology in assessing the plaintiff. The plaintiff saw both Dr. Joy and Dr. Sehon in July 2008. There was no reason, in my view, to have the plaintiff assessed by both, except to some extent, to do some “doctor shopping” (and in saying so I mean no disrespect to Mr. Fahey’s decision to have the plaintiff seen by both Dr. Joy and Dr. Sehon). My view is bolstered by the fact that, at the time that both experts were retained (or at least at the time their reports were ordered), the plaintiff had not yet seen Dr. O’Shaunessy (and certainly his report was not available) and thus Mr. Fahey’s concerns over having an expert who could “match” Dr. O’Shaunessy were unfounded.

[53] I find that is was not necessary or proper to have two experts engaged in a similar assessment at the time these experts were retained and, accordingly I disallow the claim for the expert report and fees charged by Dr. Joy in the amount of $3,937.50.

Contra Proferentem Rule Applied to Court Order Interpretation

Written by admin on . Posted in Civil Procedure, Uncategorized.


“Contra Proferentem” is a rule courts use when interpreting contracts.  In plain English it means that if there is an ambiguous clause in a contract it will be interpreted against the party responsible for drafting the clause.   In an interesting use of this rule reasons for judgement were released today by the BC Supreme Court, Victoria Registry, applying this rule to a Court order.
Today’s case (Horne Coupar v. Velletta & Company) involved a dispute between two Victoria lawfirms.  A lawyer left the first firm (Velletta & Company) and joined the second (Horne Coupar).  A few months prior to leaving the first firm the lawyer renegotiated compensation terms with her employer from a salaried position to one which entitled her to a percentage of her “collected professional fees” on the files that she worked on.
Upon joining the second firm “a dispute arose as to what files and clients (the lawyer) would take with her and how (the first firm) would be reimbursed for loss of those files“.    Ultimately a Court motion was brought and the parties entered into a consent order with the direction that “(the second firm is) to pay over professional fees to (the first firm), on a proportionate basis for those hours which had accrued while the matter was under (the first firm’s) conduct“.  This consent order was prepared by the lawyer who left the first firm and joined the second.
The lawyer then “deducted 50% from the payments made by (the second firm) to (the first firm)” as money owing to her under the percentage clause she negotiated prior to parting company with the first firm.  The first firm disputed the propriety of this deduction arguing that the Court order that was agreed to left no such option.
Mr. Justice Romilly agreed with the first firm and ordered that money be paid to the first firm without this deduction.  In coming to this decision the Court used the Contra Proterentem doctrine.  Specifically the Court reasoned as follows:
[10] Contra proferentem is a rule of contractual interpretation which provides that an ambiguous term will be construed against the party responsible for its inclusion in the contract.  This interpretation will therefore favour the party who did not draft the term presumably because that party is not responsible for the ambiguity therein and should not be made to suffer for it.  This rule endeavours to encourage the drafter to be as clear as possible when crafting an agreement upon which the parties will rely.  This rule also encourages a party drafting a contract to turn their mind to foreseeable contingencies as failure to do so will result in terms being construed against them.  That there is ambiguity in the contract is a requisite of the application of this rule, however, once ambiguity is established, the rule is fairly straightforward in application.

[11] In my view the contra proferentem rule clearly applies in this case.  It was Ms. Newman who prepared the consent order signed by herself and Velletta.  As quoted above, that consent order directs inter alia:

…Horne Coupar to pay over professional fees to Velletta & Company, on a proportionate basis for those hours which had accrued while the matter was under Velletta & Company’s conduct…

[12] This provision provides only for payment, not for deduction of “fees” to which Ms. Newman feels she is entitled (and has since deducted).  Ms. Newman’s failure to include a provision or stipulation for deduction of her own fees has resulted in an ambiguity which is to be construed against her by application of the rule of contra proferentem.  Therefore, the clear interpretation of this provision (as against the drafter) is that fees are not deductible.  Horne Coupar is bound by the consent order to pay the professional fees to Velletta in accordance with this order and without deduction for work done by Ms. Newman.

More on the Law of Multiple Defence Medical Exams in Injury Litigation

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Further to my previous posts on this topic, the law is well settled that the BC Supreme Court can order a Plaintiff involved in an injury lawsuit to undergo multiple defence medical exams in appropriate circumstances in order to ‘level the playing field‘.
There are many reported court cases considering such applications and today reasons for judgement were released by the BC Supreme Court, Victoria Registry, providing a concise summary of some of the legal principles at play when ICBC or another defendant wishes to have a Plaintiff assessed by multiple doctors.
In today’s case (Hamilton v. Pavlova) the Plaintiff was involved in a 2002 BC car crash.   The Plaintiff alleged that she suffered a mild traumatic brain injury (MTBI) in the crash which affected her cognitive functioning and had been assessed by at least 14 doctors since the time of her accident.
The Plaintiff attended two independent medical exams at request of the defendants, the first with an orthopaedic surgeon and the second with a neurologist.  The neurologist provided an opinion that “there was no evidence to support a diagnosis of brain injury“.  The Defendants then requested the Plaintiff to be assessed by a psychiatrist.  The Plaintiff refused and this resulted in a court motion to force attendance.
Mr. Justice Bracken dismissed the motion finding that the defendants were seeking to “bolster the opinion (of the neurologist they chose) by providing a similar opinion from someone with perhaps a more appropriate specialty“.  Before reaching this conclusion Mr. Justice Bracken provided the following very useful summary of some of the factors Courts consider in requests for multiple ‘independent’ medical exams:

[10] Rule 30(1) provides discretion to the court to order an independent medical examination, and under Rule 30(2), more than one examination may be ordered.  Counsel, in their helpful submissions, have thoroughly canvassed the relative authorities on this point.  From those authorities, certain principles emerge.  The case law is against a background of the rules of court, and in particular, the principle that the rules are designed to secure a just determination of every proceeding on the merits and to ensure full disclosure, so the rules should be given a fair and liberal interpretation to meet those objectives:  Wildemann v. Webster, [1990] B.C.J. No. 2304 (B.C.C.A.) at pp. 2-3.

[11] Rule 30(2) is a discretionary rule, and the discretion must be exercised judicially.  An independent examination is granted to ensure a “reasonable equality between the parties in the preparation of a case for trial”:  Wildemann v. Webster at p. 11 from the separate concurring reasons of Chief Justice McEachern.

[12] Reasonable equality does not mean that the defendant should be able to match expert for expert or report for report:  McKay v. Passmore, 2005 BCSC 570 at para. 17, andChristopherson v. Krahn, 2002 BCSC 1356 at para. 9.

[13] A second exam will not be allowed for the purpose of attempting to bolster an earlier opinion of another expert.  That is, there must be some question or matter that could not have been dealt with at the earlier examination:  Trahan v. West Coast Amusements Ltd., 2000 BCSC 691 at para. 48, and Norsworthy v. Greene, 2009 BCSC 173 at para. 18.

[14] There is a higher standard required where the defendant seeks a second or subsequent medical exam of the plaintiff:  McKay v. Passmore, supra, at para. 17 and para. 29.

[15] The application must be timely.  That is, the proposed examination should be complete and a report available in sufficient time to comply with the rules of admissibility and to allow enough time for the plaintiff to assess and respond if necessary:  Vermeulen-Miller v. Sanders, 2007 BCSC 1258 at paras. 47-48, relying in part on Goss v. Harder, 2001 BCSC 1823.

[16] Finally, subsequent independent medical examinations should be reserved for cases where there are some exceptional circumstances:  Wildemann v. Webster, supra, at p. 3.

As previously pointed out, the BC Supreme Court Rules are being overhauled in July 2010.  Under the new rules the Court will continue to have the power to order multiple medical exams in particular circumstances but one thing that will change is that the concept of ‘proportionality’ will be introduced into the analysis. I plan to follow the law as it develops under the new rules and will report how our Courts apply the concept of proportionality to multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

Keeping Damaging Evidence Out; Bias and Necessity

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An imporant skill of a trial lawyer is being able to persuade the Court, in appropriate circumstances, to exclude expert opinion evidence that is damaging to your client’s case.  Two of the many objections that can be raised against opposing expert evidence are bias and lack of necessity.   Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with these areas of the law.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 roll-over car crash.  The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.  GMC argued that the vehicle was not negligently designed and further that the Plaintiff was the author of her own misfortune for failing to wear her seatbelt.
In support of their case the Defendants obtained two expert reports.  The first was a report from an engineer (who was an employee of the Defendant GMC) who provided opinions about the handling, stability and rollover characteristics of the vehicle in question and whether the vehicle was defective.  The second was the report of a statistician who addressed the injury risk to belted and unbelted occupants in rollover accidents.
The Plaintiff applied to exclude these reports from evidence.  They argued that the engineer’s employment relationship with the Defendant at the very least created a reasonable apprehension of bias that should disqualify him from acting as an expert.  With respect to the statistician’s report the Plaintiffs argued that this evidence was not helpful for the Court.
Mr. Justice Goepel rejected the Plaintiff’s submissions with respect to bias but did agree with the submissions with respect to the statistical evidence.  In coming to these conclusions Mr. Justice Goepel provided the following useful summaries of these areas of law:

  • BIAS

[20] Canadian courts appear to have taken different positions on the issue of whether an expert witness’ bias or perceived bias will disqualify him or her from giving evidence at trial. Some courts have held that for expert evidence to be admissible, the expert must be seen to be absolutely neutral and objective. Other courts have concluded that a lack of objectivity, neutrality and independence are matters that only impact the weight to be afforded that expert. Romilly J. in United City Properties Ltd. v. Tong, 2010 BCSC 111 at paras. 35-68, has exhaustively reviewed the jurisprudence.

[21] The cases are not easily reconciled. Where there is a personal relationship between the proposed expert and the party, where the expert has been personally involved in the subject matter of the litigation or where the expert has a personal interest in the outcome, the expert has not been allowed to testify. Examples of such cases are Fellowes, McNeil v. Kansa General International Insurance Co. (1998), 40 O.R. (3d) 456 (Gen. Div.); Royal Trust Corporation of Canada v. Fisherman (2000), 49 O.R. (3d) 187 (Sup. Ct. J.);  Bank of Montreal v. Citak, [2001] O.J. No. 1096 (Sup. Ct. J.); and Kirby Lowbed Services Ltd. v. Bank of Nova Scotia, 2003 BCSC 617. In cases where the relationship between the expert and the party is more institutional in nature, the evidence has been admitted subject to weight. Examples of such cases are R. v. Klassen, 2003 MBQB 253 and R. v. Inco Ltd.(2006), 80 O.R. (3d) 594 (Sup. Ct. J.).

  • NECESSITY

[28] Expert opinion evidence is admissible only where a judge or jury are unable, due to the technical nature of the facts, to draw appropriate inferences. The defendants seek to call Ms. Padmanapan’s statistical evidence in order to establish a causal connection between a failure to wear a seatbelt in the course of a rollover accident and increased injuries. In certain circumstances statistical evidence can be helpful in determining causation:  Laferrière v. Lawson, [1991] 1 S. C.R. 541.

[29] It has been long recognized in British Columbia that a party who fails to use an available seatbelt and sustains injuries more severe than if the seatbelt had been worn will be found to be contributory negligent: Yuan et al. v. Farstad (1967), 66 D.L.R. (2d) 295 (B.C.S.C.); Gagnon v. Beaulieu, [1977] 1 W.W.R. 702 (B.C.S.C.).

[30] While there appears to have been statistical evidence led in Yuan and in Gagnon, subsequent cases have held that such evidence is not necessary. In Lakhani (Guardian ad litem of) v. Samson, [1982] B.C.J. No. 397 (S.C.) McEachern C.J.S.C. (as he then was) noted at para. 3:

I reject the suggestion that engineering evidence is required in these cases. The court is not required to leave its common sense in the hall outside the courtroom, and the evidence is clear that upon impact in both cases the Plaintiff’s upper body was flung or thrown forward striking the dashboard or the steering wheel. And common sense tells me that the restraint of a shoulder harness would have prevented that, and therefore some of the injury from having occurred.

[31] To succeed on the seatbelt defence, the onus will be on the defendants to establish upon a balance of probabilities that the use of a functioning seatbelt would have avoided, or minimized Ms. Spehar’s injuries:  Harrison v. Brown, [1987] 1 W.W.R. 212 (B.C.S.C.); Terracciano (Guardian ad litem of) v. Etheridge (1997), 33 B.C.L.R. (3d) 328 (S.C.).

[32] The statistical evidence to be led from Ms. Padmanapan is, in my opinion, not necessary and will not assist me as trier of fact in determining the issue of contributory negligence. If the evidence is not necessary, it does not meet the test of admissibility.

The "Crumbling Skull" Doctrine: BC Injury Claims and Pre-Existing Degenerative Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Spine Injury Cases, Uncategorized. 55 Comments on The "Crumbling Skull" Doctrine: BC Injury Claims and Pre-Existing Degenerative Conditions


When a Plaintiff suffers injuries by the fault of another but the evidence establishes that the person would have likely suffered the same symptoms of pain because of a pre-existing condition the Plaintiff’s award of damages can be reduced to reflect this reality.  This principle of personal injury law is known as the “crumbling skull” doctrine.  Reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, dealing with this area of law.
In this week’s case (Booth v. Gartner) the Plaintiff was injured in a 2007 BC car crash.  The Defendant struck the Plaintiff’s vehicle when he entered an intersection against a red light.  ICBC admitted fault on behalf of the Defendant but disputed the extent of the accident related injuries.
At trial Mr. Justice Cole found that the accident caused a variety of injuries.  One of the most significant was low back pain which continued to the time of trial.  The Plaintiff did not have back pain before the car crash however she had severe pre-existing (although asymptomatic) facet arthritis in her low back.  The accident caused this condition to become painful.  The Court was persuaded that this condition had a likelihood of developing pain in the future even without the accident.  As a result of this finding the Court reduced the Plaintiff’s non-pecuniary damages by 25%.  In reaching this result Mr. Justice Cole reasoned as follows:
[23] I accept Dr. Vallentyne’s opinion that the degeneration in her lower back is severe at two levels and it is likely she would have been troubled by lower back pain and stiffness at some time in the future, absent Accident #2. However, I am also satisfied that although the degeneration is pre-existing, there was symptomatic acceleration of the facet arthritis as a result of Accident #2…

[26] The CT scan of September 20, 2008, according to Dr. Vallentyne, “showed severe bilateral degeneration of the facet joints at the L4-5-S1 levels in addition to a minor 3 mm L4-5 degenerative anterolisthesis”.

[27] According to Dr. Vallentyne, degenerative changes take years to develop and he found it was probable that the plaintiff had degenerative changes of her lower lumbar facet joints prior to the 2007 motor vehicle accident. He concluded that “[g]iven that the degeneration is severe at two levels, it is likely that Ms. Booth would have been troubled by low back pain and stiffness at sometime in the future absent the 2007 MVA.”

[28] I am satisfied that there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, and I must take that into account in reducing the overall award.

[29] The principle to be applied is found in Zaruk v. Simpson et al., 2003 BCSC 1748, 22 B.C.L.R. (4th) 43 [Zaruk]. There the plaintiff had suffered a soft-tissue injury but some of her symptoms by the time of trial were consistent with degenerative changes. The Court was not satisfied that the general condition would have become symptomatic between the date of the accident and the date of trial, but concluded at para. 40, that there was a measurable risk that it would have become symptomatic in the future:

[40]   However, application of the crumbling skull doctrine may not result in the same reduction for past losses as future losses. Past losses must be assessed on the basis of a balance of probabilities. “Once the burden of proof is met, causation must be accepted as a certainty,” [Athey v. Leonati, [1996] 3 S.C.R. 458] ¶ 30). But for the assessment of future losses, “[a] future or hypothetical possibility will be taken into consideration as long as it is a real and substantial possibility and not mere speculation,” (Athey ¶ 27)

[30] The Court then reduced non-pecuniary damages by 15% and future care damages by 20%.

[31] Because the plaintiff’s degenerative condition was described by Dr. Vallentyne as “severe bilateral degeneration”, I am of the view that a large deduction is appropriate in this case and I find an appropriate deduction for non-pecuniary damages is 25% and for future care damages, 30%.

As I previously wrote,  a great discussion of this area of the law was also provided in a recent case (Gohringer v. Hernandez-Lazo) where Madam Justice Russell summarized the law as follows:

[92] In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”: Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35.

[93] In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94] I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages: A. (T.W.N.) at paras. 36-37; Barnes at para. 90.