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Non-Pecuniary Damages for Disc Herniation and PTSD Discussed, Dr. Davis Criticized

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Spine Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff close to $340,000 in total damages as a result of injuries and loss from a BC car crash.
In today’s case (Smusz v. Wolf Chevrolet Ltd.) the Plaintiff was involved in a Highway crash near Kamloops BC in 2006.  Fault was admitted by the offending motorist.  The trial dealt with the value of the plaintiff’s claim.  She suffered various injuries including a disc herniation/protrusion in her neck.  In valuing the Plaintiff’s non-pecuniary damages at $100,000 Madam Justice Russell highlighted the following facts:

[87] The plaintiff was 43 years old at the time of this accident.  She suffered injuries which, although not requiring more than a brief visit to the hospital, were nonetheless significant.  The medical evidence was mostly consistent:  her physical injuries include moderate right paracentral disc herniation at C3-4 on the right side and moderate paracentral disc protrusion at C6-7 on the left causing irritation of the left C7 root; and a bulging lumbar disc irritating the lumbar roots, all of which result in chronic left-sided neck, arm and low back pain, dizziness and headaches.  She suffered from PTSD, now substantially resolved, but still suffers from insomnia, occasional nightmares, depression and chronic pain some three years after the accident.

[88] The chronic pain caused by the injuries received in the accident has resulted in depression, no doubt complicated by her difficult financial situation, but the plaintiff was happy and energetic before the accident notwithstanding the fact that she had very little money.

[89] She was able to work in a job which did not require great skill and which did not pay well but in which she could have continued for the indefinite future.  It gave her some income and gave her the sense of participating in her family’s finances.

[90] The evidence of her friends and family support the substantial change she has undergone as a result of the accident.  From a positive, lively person who enjoyed participating in her community, she has become somewhat reclusive and quiet and it appears she may even lose her romantic relationship because her physical limitations interfere with the activities she used to enjoy with her boyfriend.

[91] While she had suffered brief episodes of depression in the past, I am satisfied they were reactive depressions and were fully resolved at the time of the accident.  I have no doubt that because she has suffered depression in the past, she was vulnerable to depression, but she is the thin-skulled plaintiff here rather than a crumbling skull plaintiff.  However, I find that the depression which followed the accident and her chronic pain means that she is at risk of developing an even more severe depression in the future.

[92] Immediately following the accident, the plaintiff also had chest bruising and abrasions which resolved quickly.  Her knee injury troubled her for about six months but is now resolved.

[93] There is a possibility she will require surgery in the future to address the herniation at C6-7 since the conservative treatment measures employed so far have not provided the plaintiff with any relief.  She has resisted this surgery because, even if it is successful, she will be left with continuing neck pain so resort to surgery would only be a desperate measure if she begins to suffer nerve damage which follows from the herniation or if her chronic pain worsens.

[94] The plaintiff’s anxiety is worsened by the possibility she will need surgery in the future.

[95] The plaintiff is also less able to perform her household work than she was and has received assistance from her children.  When she does do her housework, she does it more slowly and with some pain.  This is a substantial change from the enthusiastic homemaker she was before the accident.

[96] I have considered the plaintiff’s loss of housekeeping capacity and the help she has been given and will continue to receive from her children under this head of damages and would assess the loss at $10,000.

[97] Considering the factors listed above, and upon reviewing the case law provided by both counsel, I find that an appropriate award of non-pecuniary damages is $100,000.00, including the loss of housekeeping capacity.

Another noteworthy aspect of this case was the Court’s discussion of one of the defence experts.  Dr. Davis is a psychiatrist who prepared an expert report for the Defendant.  His opinion differed from the Plaintiff’s experts with respect to her accident related injuries.  He was cross-examined in open court and ultimately his evidence was not accepted.  In reaching this decision Madam Justice Russell made the following critical comments:

[81] Dr. Davis’ report differed substantially from those of all other experts.  It is his opinion that none of the plaintiff’s current emotional difficulties stems from the motor vehicle accident.  He is firmly of the view that her depression is solely attributable to her financial problems, her lack of a supporting husband and her limited skills in English.

[82] To support his position, Dr. Davis pointed to the two reactive depressions which had affected the plaintiff before the accident as establishing an “ongoing depression” and therefore her current symptoms were not causally related to the motor vehicle accident of October 2006.

[83] I note that when he wrote his report, Dr. Davis had not reviewed Dr. Tomaszewski’s notes of appointments with the plaintiff one week following the accident which recorded the occurrence of nightmares and acute anxiety.  Dr. Davis stated that these symptoms were important but appeared to minimize them by indicating they would only be a problem caused by the accident in the first six months or so, at the same time as her soft tissue injuries should have been resolving.

[84] I have reviewed Dr. Davis’ testimony and find it to be argumentative, unyielding and seriously at odds with what I view to be the preponderance of other and more credible medical evidence.  I do not accept his findings.

BC Court of Appeal Discusses In Trust Claims and Document Disclosure Requirements

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 99 Comments on BC Court of Appeal Discusses In Trust Claims and Document Disclosure Requirements


Reasons for judgement were released today by the BC Court of Appeal discussing two important legal principles in the context of personal injury claims, “In Trust” Claims and Document Disclosure requirements.
By way of brief background, in today’s case (Dykeman v. Porohowski) the Plaintiff was injured in two motor vehicle accidents.  Her matter went to trial and a Jury awarded $44,000 in total damages.  The Plaintiff was seeking substantially greater damages and she appealed alleging the trial judge made multiple errors.
The BCCA granted the appeal and ordered a new trial.  In doing so the Court made some useful comments about the above areas of law.
1.  In Trust Claims
Generally speaking when a person is injured through the fault of another and has limits they can be compensated for hiring others to help them with their limits.  If the help is provided free of charge by family members a claim can still be made and this is called an ‘in trust’ claim.
In today’s case the trial judge refused to put the “in trust” claim to the jury reasoning that injuries were not “grievous” enough for an in trust claim.   The Court of Appeal agreed that this was incorrect and that “grievousness” is not required to advance an in-trust claim.  The Court provided the following useful summary of the law:

[28] Since Kroeker, it has been settled law in this province that “housekeeping and other spousal services have economic value for which a claim by an injured party will lie even where those services are replaced gratuitously from within the family.”  In Kroeker, such recovery was allowed under the heading of ‘loss of future ability to perform household tasks’, but obviously, damages for loss of such ability prior to trial may also be properly claimed and recovered: see, e.g., McTavish v. MacGillivray, 2000 BCCA 164 at paras, 43, 51-7, perHuddart J.A.; West v. Cotton (1995) 10 B.C.L.R. (3d) 73 (C.A.) at para. 25; and Campbell v. Banman 2009 BCCA 484.  The reasoning in Kroeker has been extended beyond “spousal” services to services rendered by other members of a family: see Boren v. Vancouver Resource Society, Dufault, McTavish v. MacGillivray; Bystedt v. Hay, all supra.  Such awards are colloquially referred to as “in trust” even though it is the plaintiff who recovers them, and British Columbia courts do not generally impose trust terms in their orders, regarding the loss as that of the plaintiff: see Feng v. Graham (1988) 25 B.C.L.R. (2d) 116 (C.A.) at 9-10; McTavish, supra.

[29] The majority in Kroeker was alive to the possibility that awards for gratuitous services by family members of plaintiffs could “unleash a flood of excessive claims” (supra, at para. 29) and for that reason, urged courts to be cautious in making such awards.  In the words of Gibbs, J.A.:

… as the law has developed it would not be appropriate to deny to plaintiffs in this province a common law remedy available to plaintiffs in other provinces and in other common law jurisdictions. It will be the duty of trial judges and this Court to restrain awards for this type of claim to an amount of compensation commensurate with the loss. With respect to other heads of loss which are predicated upon the uncertain happening of future events measures have been devised to prevent the awards from being excessive. It would be reasonable to expect that a similar regime of reasonableness will develop in respect of the kind of claim at issue in this case.  [At para. 19; emphasis added.]

I do not read Kroeker or Ellis, however, as establishing a threshold of “grievousness” in terms of the injuries which may necessitate such services.  A plaintiff who has a broken arm, for example – presumably not a “grievous” injury – and who is obliged to seek assistance in performing various household tasks should not be foreclosed from recovery on this basis.  This was recognized in Ellis in the quotation reproduced above.  Thus I disagree with the trial judge’s reference to grievous injury as a threshold that the plaintiff was required to surmount if her claim was to go to the jury.  Instead, claims for gratuitous services must be carefully scrutinized, both with respect to the nature of the services – were they simply part of the usual ‘give and take’ between family members, or did they go ‘above and beyond’ that level? – and with respect to causation – were the services necessitated by the plaintiff’s injuries or would they have been provided in any event?  Finally, if these questions – which I would have thought are appropriate for determination by a jury – are answered affirmatively, the amount of compensation must be commensurate with the plaintiff’s loss.  The assessment of such loss has been the subject of several considered judgments in this province, most notably McTavish and Bystedt, both supra.

[30] The trial judge’s second reason for not putting the claim to the jury in this case was that the services which were the subject of the in-trust claim were not personal or household services but were related to the business operated by the plaintiff’s family.  As mentioned above, counsel evidently agreed that the plaintiff’s parents’ claim for ‘business losses’ had not properly been made.  It is not correct to say, however, that the plaintiff herself could not claim for assistance provided by family members in a family enterprise (see Johnson v. Miller, supra) or that there was no evidence of personal or household services having been provided by Ms. Dykeman’s parents to her.  The mother testified that she was “supposed to spend” a third of her time on the farm – in accordance with the partnership agreement in evidence – and had planned on going back to practice on a part-time basis.  Instead, she found herself spending at least 10 to 12 hours per week assisting in the business and babysitting her grandchildren when her daughter had medical appointments or migraine headaches.  At the time of trial, she testified, she was caring for her grandchildren “pretty well every day” plus assisting in the equestrian business.  The plaintiff’s migraines had become less frequent, but the medication she took for them essentially ‘knocked her out’ for 12-14 hours – during which Ms. Dykeman’s mother slept in the same room with her granddaughter.  The thrust of her evidence was that at least until her grandchildren were in school, she would not be able to return to practice even on a part-time basis.  Mr. Dykeman’s services, on the other hand, related almost entirely to “physical work” in the Freedom Fields Farm operation.

[31] In all the circumstances, it seems to me that there was evidence of household and other assistance provided by Ms. Dykeman’s parents that could have been the basis of an award and that the trial judge erred in effectively granting a ‘no evidence’ motion in respect thereof.  I would allow the appeal on this ground.

2. Document Disclosure Obligations

The second area highlighted in this case relates to document disclosure.  In pre-trial investigation the Defendants gathered a number of Internet postings apparently written by the Plaintiff.  They listed these documents as ‘privileged‘ and did not reveal them until shortly before trial.  In describing the privileged documents they labelled them as a “diskette containing an index to the Plaintiff’s web postings“.

The Plaintiff objected to these documents being used in cross examination but the trial judge allowed the cross examination.  On appeal the BCCA found that this was an error finding that the documetns were not properly described and this may have pejudieced the Plaintiff.  Specifically the BCCA said as follows:

[41] Applying these observations to the case at bar, can it be said that the descriptions reproduced above were such as to enable the plaintiff and her counsel, or a judge in chambers, to assess the validity of the claim of privilege?  In my opinion, none of the items was sufficiently described for this purpose.  Item 77, an index to the plaintiff’s “web postings”, could contain any number of “writings” posted on any number of websites, relevant or irrelevant to the case.  With respect to item 78, one does not know who wrote the “articles” regarding the plaintiff’s equestrian business or the date of such articles; with respect to item 79, there is no description of the “pictures printed out from the Internet regarding horse riding”, where they are from or what connection, if any, the plaintiff had with them; and with respect to item 80, there is again no description of the “articles”, who wrote them or when.  Counsel told the court below that the postings had all been written by the plaintiff, but even that was not apparent from the disclosure document.  Thus I disagree with the trial judge’s ruling that the postings had been adequately “listed” for purposes of R. 26.  (For a discussion of ‘e-discovery’ generally, see The Sedona Conference Working Group 7, The Sedona Canada Principle: Addressing Electronic Discovery (2008).)  If the defence had been more forthcoming, counsel for Ms. Dykeman might well have challenged the claim of privilege asserted by Mr. Harris – via the Form 93 filed by Mr. Gibb.

[42] Assuming, then, that the defence failed to make proper discovery of the Internet documents, the next question is whether it can be said the trial judge nevertheless properly exercised his discretion under the opening words of R. 26(14) to permit Ms. Dykeman to be cross-examined on some of those documents.  In Stone v. Ellerman, the majority stated that the factors relevant to the exercise of such discretion include the question of prejudice to the party being cross-examined, whether there was a reasonable explanation for the other party’s failure to disclose, whether excluding the document would prevent the determination of the issue on its merits, and whether in the circumstances of the case, the ends of justice require that the document be admitted.  In this case, counsel did not provide any “explanation” for the non-descriptiveness of Mr. Gibb’s list and argued only that disclosure hadbeen sufficient.  The trial judge therefore had no explanation to consider, even if he had been of the view that the listing was deficient.

[43] It is difficult to square the trial judge’s ruling on this second question with his prior ruling that the documents had been properly disclosed or ‘listed’.  If the latter was correct, there was no need to ‘balance’ the interests of justice in avoiding trial by ambush against the interests of justice in assessing Ms. Dykeman’s credibility by cross-examining her on the Internet postings.  Given that her lawyer had only half an hour to discuss the 124 pages with her, it cannot be said with any certainty that she was not prejudiced by what transpired.  At the end of the day, I am not confident that the apparent exercise of the trial judge’s discretion was fair to the plaintiff or rested on a correct understanding of the Rule.  I would therefore allow the appeal on this basis as well.

This case contains some other interesting comments which are worth reviewing, particularly with defence statements to the jury regarding adverse inference.  I urge all personal injury lawyers in BC to read this case in full as it thoroughly canvasses many areas that routinely arise in injury prosecution in this Province.

Charles Adler Radio Interview on Frivolous Lawsuits in Canada

Written by admin on . Posted in BC Injury Claims Media Archives, Tort Reform, Uncategorized. 53 Comments on Charles Adler Radio Interview on Frivolous Lawsuits in Canada


Today I was interviewed by Charles Adler of Corus Radio on the topic of frivolous lawsuits.
The interview aired nationally.  You can click on the following link ( adler-and-erik-audio-clip ) to listen to my portion of the interview.
I’d like to credit CJOB 68 Winnipeg / Corus Radio Network for providing me with a copy of the clip.

More on BC Injury Claims and Multiple Defence Medical Exams

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 54 Comments on More on BC Injury Claims and Multiple Defence Medical Exams


Further to my recent post on this topic it is well settled that the BC Supreme Court can order that a Plaintiff undergo multiple defence medical exams in a Personal Injury Claim depending on the circumstances of any particular case.
There are some limitations on this and one such restriction relates to having the same injury reassessed when nothing has changed since an initial defence examination.  Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, demonstrating this.
In this week’s case (Bidgood v. Kostman) the Plaintiff was involved in a personal injury lawsuit.   The Plaintiff consented to being examined by an orthopaedic surgeon at the request of the Defendant.  This surgeon provided a report commenting on the Plaintiff’s injuries.   As the lawsuit progressed the Plaintiff exchanged the medical reports that she wished to rely on to the Defendants as required by the Rules of Court.  These reports commented on the Plaintiff’s chronic myofascial pain.  This prompted the Defence to seek a second medical exam, this time with a physiatrist.  The Plaintiff did not consent to this and a Court motion was brought to compel attendance.
The Defence argued that they needed the additional exam to assess the allegation of chronic myofascial pain.    Master McCallum of the BC Supreme Court rejected the motion finding that the Defendant had a proper opportunity to assess this alleged injury when they had their first defence medical exam.  Specifically Master McCallum noted the following:



[7] The authorities are clear, and there is no real dispute between counsel here. The court can order any number of reports by nominees of a party, but in this case, in order to have an additional report on this issue of myofascial or soft tissue pain, there has to be some evidence that something has changed. There is no such evidence. The diagnosis and findings of Dr. Wahl in his report are remarkably similar to the reports that he had when he saw the plaintiff. They are remarkably similar to the reports that have been delivered later, and particularly Filbey’s report. It is clear that nothing has changed in the plaintiff’s symptomology. There is no suggestion here that Dr. Wahl made a comment that she should be seen by someone else as he was unable to make findings of fact with respect to what was troubling her or could not make a diagnosis. None of that is found in Wahl’s report. It is simply the case that the defendants now wish to have the matching specialist, as Lofgren says in her affidavit, because the defendants believe that Dr. Wahl’s report may somehow not stand up to Dr. Filbey’s report.  There is no evidence of that. There is no evidence that an orthopedic surgeon could not make findings in the way he did. There is no evidence that Dr. Filbey is somehow better off to report on the findings that he made. That is simply not the case.

[8] The plaintiff may be right when she says that the defendants have an expert whose report does not favour the defendants’ case particularly, and that a further report may aid them more than Dr. Wahl’s report. This is not a case where the defendants are in a position of inequality or the defendants are prejudiced by whatever the plaintiff has done in the time between Dr. Wahl’s report and the 40A deadline. None of that occurred. The prejudice will occur if the examination by Dr. Hirsch, the further report, goes ahead because that will be, as the plaintiff says, fresh evidence on this issue to which they will feel obliged to respond. If the defendants want a rebuttal report, then the defendants are entitled to obtain one. They do not need to have the plaintiff examined to accomplish that.

[9] The application for the examination by Hirsch is dismissed. In the circumstances ?? we do not have a liability problem here, do we, so the plaintiff will get her costs in any event.

As readers of this blog know the BC Supreme Court Rules are being overhauled in July 2010.  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.  It will be interesting to see how this principle affects the law of multiple defence medical exams in ICBC and other BC Personal Injury Litigation.

BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims

Written by admin on . Posted in ICBC Liability (fault) Cases, ICBC Spine Injury Cases, Uncategorized. 64 Comments on BC Supreme Court Discusses Pedestrian Visibility in Negligence Claims


Reasons for judgement were released yesterday by the BC Supreme Court considering whether a pedestrian involved in a collision was at fault for not being visible enough to the motorist.
In yesterday’s case (Smaill v. Williams) the pedestrian was struck by a minivan while he was walking on a dirt road in dusk conditions.  When he heard the vehicle approaching he “took a few quick steps to the side out of the travelled path of the road”.  Unfortunately he could not get out of the way and was “thrown up onto the hood, striking his back and shoulders, and then was thrown to the ground on his hands and knees“.
The Defendant argued that the Plaintiff was partially at fault for the accident for wearing dark clothing, not having a flashlight and not wearing a reflective traffic vest.  Madam Justice Russell rejected this argument and in doing so provided the following reasons:

[68] I accept the plaintiff’s evidence that it was dusk but not dark enough for him to require a flashlight and therefore the plaintiff was not contributorily negligent and the defendants’ liability should not be reduced as such.

[69] I note as well, that while carrying a flashlight might be a prudent practice for all pedestrians in dark areas, it is not a universal or even common requirement, no more than it is wise, but not common, for pedestrians to wear reflective traffic vests.

[70] I note, too, that the plaintiff testified he paid heed to the sound of the oncoming car and took several steps off the roadway to be out of its way.

[71] I find the plaintiff did take reasonable care for his own safety by trying to stand well out of the roadway and to avoid the oncoming vehicle.

[72] I find no contributory negligence on the part of the plaintiff.

The Plaintiff suffered some serious injuries to his spine which were expected to cause some permanent restrictions.  In valuing the non-pecuniary damages at $100,000 the Court summarized the injuries and their effect on the Plaintiff’s life as follows:

[62] I accept the evidence of Dr. McKenzie.  I found him to be a careful and persuasive witness.  I accept his medical finding that the plaintiff suffered a fracture of the tranverse processes at L3 and L4, an injury to the sacroiliac joint and that formerly asymptomatic disc bulges and protrusions became symptomatic as a result of his injuries.  I accept that the plaintiff has proved on a balance of probabilities that the symptoms, including non-specific back pain that he currently suffers from, including disc protrusion, were caused by the first accident and the pain from those injuries was aggravated by the second accident.

[63] While none of the doctors could say with certainty that the disc problems were caused by the accident, this is not the standard required.  Dr. McKenzie testified, and I accept, that it is more probable than not that they were caused by the injury.  This is supported by the evidence of Dr. Dercksen who noted the injuries were more than normal degeneration for someone of the plaintiff’s age.

[64] Therefore, I agree with the plaintiff that, on a balance of probabilities, but for the negligence of the defendants, the plaintiff would not have sustained the injuries that he did, and  the plaintiff has met the test for causation:  Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 18-28, [2007] 1 S.C.R. 333. ..

[87] As a result of these accidents, the plaintiff sustained significant injuries and suffered from a great deal of pain, for which he is entitled to recover damages.  However, while I have the greatest sympathy for the plaintiff’s emotional suffering, there is evidence before this Court that this is a pre-existing condition from which the plaintiff had already been suffering and therefore this is not a ‘thin-skull’ situation.  The defendants are not liable to compensate the plaintiff for a condition which was already manifest at the time of the accident.

[88] In light of the plaintiff’s suffering, and taking into consideration his pre-exisiting condition and its contribution to his chronic pain, an award of $100,000 for non-pecuniary damages is appropriate.

$60,000 Non-Pecuniary Damages for Accident Related Fibromyalgia

Written by admin on . Posted in ICBC Fibromyalgia Cases, Uncategorized. 64 Comments on $60,000 Non-Pecuniary Damages for Accident Related Fibromyalgia

(Please note the case discussed here was overturned by the BC Court of Appeal in May, 2010)
Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry, (Poirier v. Aubrey) awarding a Plaintiff just over $220,000 in total damages as a result of a BC Car Crash.
The Collision occurred in 2006 and was a rear-end crash.  The Plaintiff suffered from some pre-existing injuries but the trial judge found that the Plaintiff did not have a ‘relevant’ pre-existing condition.  Mr. Justice Stewart concluded that the accident caused fibromyalgia and awarded $60,000 non-pecuniary damages.  In arriving at this figure Mr. Justice Stewart noted the following:
there was no relevant significant pre-existing condition and the doctors may differ as to what label should be applied to the plaintiff’s condition – fibromyalgia, fibromyalgia-like syndrome, chronic pain condition – but the fact is that she suffers from chronic widespread pain that is, for her, debilitating and with respect to which the prognosis is guarded.  An “optimal fibromyalgia based treatment protocol”, including biofeedback, is recommended and there is a real and substantial possibility, bordering on likelihood, that her pain and discomfort will be relieved and her functioning improved.  (Exhibit 5 Tab B Page 6).  But no “cure” is in prospect…
I find as a fact that the plaintiff’s persistent, consistent and, ultimately, chronic pain and suffering arose only immediately after the September 5, 2006 motor vehicle accident.  The schism in the expert medical evidence placed before me was not as to whether the September 5, 2006 trauma was a materially contributing cause of the plaintiff’s ongoing chronic pain condition but as to whether it so contributed by exacerbating a pre-existing chronic pain condition or by simply triggering a chronic pain condition.  It is now a fact that there was no significant pre-existing condition.  The only available conclusion in the case at bar is that but for the defendant’s negligence on September 5, 2006 the plaintiff would not be burdened with the chronic pain condition that has been her lot since September 5, 2006.

[23] Soft tissue damage is the source of her problems.  I have kept Maslen v. Rubenstein (1993), 83 B.C.L.R. (2d) 131 (C.A.) in mind.  I find that the plaintiff is one of that small percentage of people, well known to the law, whose pain and suffering continues long after science would say that the injured tissue must have healed.  I have cautioned myself about the need to be slow to rely on what are uncorroborated reports of long-standing pain and discomfort.  But, on the whole of the evidence I have decided that her complaints of pain are true reflections of a continuing injury and are not a product of desire by the plaintiff for things such as care, sympathy, relaxation or compensation and that she has used every ounce of willpower she has to overcome her problems and could not reasonably be expected to have achieved more by her own inherent resources or willpower.  (Maslen v. Rubenstein,supra, paragraphs 8 and 15).

[24] I turn to the future.

[25] To use language employed by Dr. Jaworski, the prognosis is “guarded”.  Taken together, the evidence of Dr. Hyams, Dr. Shuckett and Dr. Jaworski bottoms the conclusion that what is now in place – an ongoing, positive, pro-active approach, to echo Dr. Shuckett – means that there is a real and substantial possibility that significant improvement is in the offing.  To date, the plaintiff has sought help in such things as prescription drugs, chiropractic treatments, physiotherapy, massage, acupuncture and trigger point injections.  Only now is the plaintiff in the course of an organized effort to both alleviate her pain and discomfort to the extent possible and teach her techniques and methods of dealing with and surmounting her pain and discomfort.

[26] I turn to the assessing of non-pecuniary damages.  The plaintiff has been burdened thus far for 39 months.  Her prospects are not bleak, but guarded.  The level of the pain and discomfort she has endured was such that her life apart from work has been turned from one full of activity to one devoted to rest and recovery.  She is not housebound.  She drives a car for up to 20 hours a week and makes herself useful in the lives of her children.  The level of her pain and discomfort resulted in this woman – whom I am convinced is not a slacker and enjoyed her job in the world of insurance adjusting – being off work for six weeks, returning to work at half-time for two months and, ultimately, stopping work after having her employer cooperate in every way possible to reduce the demands of the job so that she could continue working.  That speaks volumes about her condition.  Additionally, the fact she actually enjoyed her work and has had it curtailed as a result of the defendant’s negligence must weigh heavily in the assessment of non-pecuniary damages.  I have considered the cases placed before me by counsel.  To track some of the language used in Knauf v. Chao, 2009 BCCA 605, I classify this as a case in which there is a real and substantial possibility that the plaintiff’s soft tissue injury will prove to be “permanent” but the degree of pain and discomfort cannot be considered to be “the most severe in nature” when compared with that of plaintiffs in other such cases.  Taking into account not just what I have said here but the whole of the evidence and all I have said thus far in these reasons for judgment, I award the plaintiff $60,000 by way of non-pecuniary damages.

This case was interesting for Mr. Justice Stewart’s very specific reasons setting out why he rejected many of the defence positions advanced at trial and also for the Court’s discussion of the law of adverse inference for failing to call a treating physician in an injury claim.

Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, independent medical exams, Uncategorized. 56 Comments on Defence Medical Exams – BCSC More Than Just A "Rubber Stamp"


As readers of this blog know when people sue for damages in the BC Supreme Court as a result of an Injury Claim they give up certain privacy rights.  Documents need to be disclosed to opposing counsel, examinations for discovery can be compelled, even ‘independent‘ medical exams can be ordered.
In the course of an Injury Claim Rule 30 of the BC Supreme Court Rules permits a Court to order that a Plaintiff undergo a Defence Medical Exam(DME) in order to “level the playing field“.   It is generally accepted that at least one DME will be ordered by the Court if requested in a typical personal injury claim.  Such an order, however, is not an automatic right and reasons for judgement were released today demonstrating this.
In today’s case (Chapman v. Magee) the Plaintiff was injured in “a reasonably nasty motor vehicle accident involving…a car and a motorcycle“.  The Injuries included a flailed chest and a broken ankle.
The Defence lawyer asked that the Plaintiff attend a defence medical exam with a respirologist and an orthopaedic surgeon.   The Plaintiff’s lawyer did not consent and a court motion was brought to compel attendance.  Master Caldwell dismissed the application finding that the materials in support were “significantly wanting“.    The Court noted that while the evidentiary burden on these applications is not high the Court is not a ‘rubber stamp‘ and some evidence needs to be tendered.  Specifically Master Caldwell stated:

There is nothing in the material where counsel opines as to the need for these reports or these examinations to be done, which, as I see the case authority, and in particular, Astels, para. 23, where the court says:

In addition to the paralegal’s affidavit, there was also in evidence a letter from counsel for the defendants to counsel for the plaintiff concerning the proposed medical examination in which counsel for the defendant said:

You will be asking the court to retrospectively decide whether or not the plaintiff was totally disabled the date the action was commenced.  Clearly medical opinion in that regard is relevant.

[5] He is opining there as counsel as to the importance and purpose of the Rule 30 examinations.  In my view, that sets out a bare minimum, and I do not want to be overly technical because it may or may not be efficient to go on that basis, but in my view there is not a scintilla of evidence here from counsel or otherwise as to the use that this information would be put to.  I can certainly speculate and it would appear from the pleadings that I could speculate as to what use it might be made, but far and away from what the minimum level is, it would be nice on these applications to have letters or some kind of material from a doctor opining as to why they need to see the person.  That certainly goes beyond what would be needed, but in my view, Astels puts down a bare minimum.

[6] And as I say, I may be being overly technical, but I do not think so.  These are not rubber-stamp applications and they cannot become rubber-stamp applications.  There must be some substance relating to what this information is going to be used for and what the focus is going to be.  And, frankly, having gone over the lunch hour and again read the letters, I can find no such supporting evidence in the material filed by the defendant.

[7] On that basis, this application for today by the defendants is dismissed.  It is dismissed without prejudice to their right to re-bring the application on proper material because I think there may be something out there and I think Rule 1(5) does say “on the merits” and it should not be just simply a technical slam-dunk there.  But the application on the basis of the material before me has to be dismissed in my respectful view.  It has to be dismissed on the basis that costs will be to the plaintiff in any event of the cause on this because the material brought by the defence simply is not adequate.  The issue of costs in subsequent application, should the defence seek to bring such an application, can be dealt with by the court that hears that application.

As with all civil procedure cases I will cross reference this with the New BC Supreme Court Civil Rules.  Rule 30 is replaced with Rule 7-6 and the wording is almost identical under the new rules making precedents such as this one useful under the soon to be in place new system.

Can A Motorist Be At Fault For Being Rear-Ended?

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 64 Comments on Can A Motorist Be At Fault For Being Rear-Ended?

(Please not the case discussed in the below post was overturned by the BC Court of Appeal who ordered a new trial.  You can read the BCCA decision by clicking here)
While unusual the answer is yes.  Reasons for judgement were released today discussing this area of the law.
In today’s case (Skinner v. Guo) the Plaintiff was involved in a 2006 BC Car Crash.  The Plaintiff was driving on Highway 1 when he rear-ended the Defendant’s vehicle which was stationary in the Plaintiff’s lane of travel.  The Defendant did not give any evidence at trial although it appears the Defendant stopped because he struck a coyote.  Given the Defendant’s lack of explanation for being stopped in a travelled portion of the roadway the Court found that he was in violation of s. 187 of the Motor Vehicle Act.
The Plaintiff argued that the Defendant was at fault for the collision for stopping his vehicle and failing to activate his emergency flashers.  Mr. Justice Harvey disagreed and found the Plaintiff 100% at fault for failing to see a stationary vehicle that was there to be seen.  Before dismissing the case Mr. Harvey said the following with respect to fault when a motorist rear ends another in British Columbia:

[15] All of the cases referred to me by counsel note that there is a high onus on a following driver, as stated in Molson v. Squamish Transfer Ltd. (1969), 7 D.L.R. (3d) 553 (B.C.S.C.).  One principle to be extracted from the rear?end cases is that when one car runs into another from behind, the onus is on the driver of the rear car to show that the collision was not occasioned by his fault.  However, each case must be decided upon its facts, and I have been referred to cases where substantial liability has been imposed upon the front driver and others where the following driver has been assessed one hundred percent of the claim.  I do not find this case similar to the authorities referred to me by counsel for the plaintiff, which include McMillan v. Siemens, [1994] B.C.J. No. 2546 (S.C.); Lloyd v. Fox (1991), 57 B.C.L.R. (2d) 332 (C.A.); and W.K. Enterprises Ltd. v. Stetar, [1976] B.C.J. No. 484 (S.C.).  In each of those cases the hazard created by the negligence of the driver who had stopped his vehicle was not apparent for either reasons of weather conditions or the design of the roadway until a point where the plaintiff’s vehicle was much closer than was the case here.

[16] Baker v. Cade, [1999] B.C.J. No. 239 (S.C.), has facts which are most analogous to the case at bar.  There, the collision involved two cars and a motorcycle.  The first car stopped in the middle of a bridge, and the car immediately behind that car came to a stop as well, without activating emergency flashers.  The plaintiffs were following behind on a motorcycle.  The stopped vehicles were approximately 800 feet away when the plaintiff crested the bridge and had a view of what was happening.  The plaintiffs were unable to stop the motorcycle and collided with the rear of the second vehicle, suffering significant injury.  The role of the driver of the second vehicle in that situation is analogous to that of the defendant in this case.  While Drost J. concluded that the driver of the second vehicle was negligent, he held that his negligence was not the proximate cause of the accident.  I reach the same conclusion here.

[17] The only distinguishing factor in this case is that the accident occurred at night.  However, I find as a fact that the area was well lit and the sight line of the plaintiff would have allowed him to the defendant’s stationary vehicle approximately a kilometre away.  Indeed, the plaintiff says he did see the defendant’s vehicle, but that he did not determine until it was too late that it was stopped.  Despite his description of the traffic, he took no evasive manoeuvres to avoid striking the rear of the defendant’s vehicle.  He believes he was some 20 to 30 yards away when he slammed on the brakes.

[18] Accordingly, the action is dismissed.

For more on this area of the law click here to read a case summary where a motorist was found partially at fault for being rear-ended.

I'd Buy That For a Dollar – Rule 37B and Nuisance Settlement Offers

Written by admin on . Posted in Civil Procedure, Uncategorized. 51 Comments on I'd Buy That For a Dollar – Rule 37B and Nuisance Settlement Offers


As readers of the blog know Rule 37B of the BC Supreme Court Rules has given the Court considerable discretion with respect to awarding parties costs when formal offers of settlement are beat at trial.  One pattern that is becoming clear under the new Rule is that token offers of settlement are not particularly effective in triggering meaningful costs consequences.  Reasons for judgement were released today demonstrating this.
In today’s case (Skinner v. Fu) the Plaintiff was involved in a BC Car Crash and sued the other motorist.  The issue of fault was hotly contested by ICBC who argued that the Plaintiff was fully at fault for the accident and his injuries.  Mr. Justice Harvey of the BC Supreme Court agreed and dismissed the Plaintiff’s claim after a summary trial.
Having successfully defended the lawsuit ICBC (through the Defendant) applied for costs from the Plaintiff.  Prior to trial the Defendant made a formal offer to settle the claim for $1.  ICBC asked the Court to award them double costs.
Mr. Justice Harvey dismissed the motion for double costs.  In doing so he commented that a $1 offer in an ICBC Claim with contested liability is not a ‘reasonable offer’ which ought to trigger increased costs consequences for the losing party.  Specifically the Court held as follows:

[15] Liability was the central issue between the parties. The defendants, from the time the matter was first reported to the Insurance Corporation of British Columbia, took the position that no liability rested with the defendant driver despite his apparent breach of s. 187 of the Motor Vehicle Act, R.S.B.C. 1996, c. 318.

[16] Immediately after the writ of summons was issued, the offer to settle the matter for $1 was forwarded to the plaintiff.

[17] Where, as in the case at bar, the central issue is liability, I do not consider an offer of $1 plus costs of filing the writ of summons an offer which ought reasonably be accepted, either on the date that the offer to settle was delivered or on any later date. Were it so, all defendants in similar positions would follow suit and, as a result, enhance their entitlement to costs without promoting the underlying objective of Rule 37B, which is to encourage reasonable settlement.  As a result, this offer to settle will have no effect on the order of costs in this case.

This is not the first case interpreting Rule 37B in this way (click here to read my previous posts discussing the Court’s application of Rule 37B in BC Injury Claims) and the pattern seems well established that nominal offers will rarely be effective for triggering meaningful costs consequences.

In my continued efforts to get prepared for the New BC Supreme Court Civil Rules I am cross referencing Civil Procedure cases that I discuss on this blog with the New Rules.  I will again point out that Rule 37B will be replaced with Rule 9 under the New Rules. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

Court of Appeal Discusses Liability of Cyclists Riding In Crosswalks

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized.


Reasons for judgement were released today by the BC Court of Appeal discussing the law of negligence with respect to cyclists who are struck by a vehicle while riding on a cross-walk.
In today’s case (Bradley v. Bath) the Plaintiff was involved in a 2003 BC Cycling/Motor Vehicle Accident.  He was riding his bicycle on the sidewalk heading towards a gas station.  At the same time the Defendant was driving a car attempting to exit the gas station.  The Defendant struck the Plaintiff.  The Plaintiff sued for damages and succeeded.  The trial Judge Found the Defendant 100% at fault and damages of $396,753 were awarded.  In coming to her conclusion  she stated  “the plaintiff was not contributory negligent because the plaintiff could have been struck by the defendant’s vehicle if he had been a jogger, rollerblader or regular pedestrian rather than riding his bicycle.  Thus, she concluded that the plaintiff’s breach of the Motor Vehicle Act was not causally connected to the accident.”
The Defendants appealed arguing, amongst other things, that the Trial Judge was wrong in finding the motorist 100% at fault.  The Appeal was successful and the Court of Appeal concluded that the cyclist was 50% at fault for the crash.  In reaching this decision Mr. Justice Tysoe stated as follows:

[27] In my respectful view, the trial judge did not ask the correct question.  The proper question was not whether a jogger, rollerblader or pedestrian could have been hit by the defendant’s vehicle.  The correct inquiry was to determine whether the plaintiff failed to take reasonable care for his own safety and whether his failure to do so was one of the causes of the accident.  While the judge acknowledged that the plaintiff was under a heightened duty of care because he was in breach of the law by riding his bicycle on the sidewalk, she failed to give effect to the heightened duty because she did not consider what care had been taken by the plaintiff when he saw the defendant’s vehicle moving towards the exit from the gas station.

[28] In my opinion, the plaintiff was at fault, and his fault was one of the causes of the accident.  Contrary to law, he was riding his bicycle on the sidewalk against the flow of traffic.  He saw the defendant’s vehicle moving towards the exit he was approaching.  Rather than making eye contact with the defendant or stopping his bicycle and letting the defendant’s vehicle exit the gas station, the plaintiff assumed the defendant saw him and would not accelerate his vehicle.  In these circumstances, he was at fault for continuing to ride his bicycle across the path to be taken by the defendant’s vehicle in exiting the gas station…

[30] I am of the view that the fault of the parties in this case is equal.  The plaintiff’s fault was riding his bicycle on a sidewalk against the flow of traffic and continuing to ride across the path of the exiting vehicle without ensuring his way was clear.  The defendant’s fault was his failure to keep a proper lookout when exiting the gas station.  I do not believe that one party is more culpable than the other.

This case is also worth reviewing for the Court’s discussion of “In Trust” Claims and awards for “Diminished Earning Capacity” which can be found at paragraphs 37 – 52 of the Reasons for Judgement.