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Personal Injury Claims and Radiologists Opinion Evidence

Written by admin on . Posted in Civil Procedure, Uncategorized. 59 Comments on Personal Injury Claims and Radiologists Opinion Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
X-rays, CT Scans, Bone Scan and MRI’s are routinely used in the diagnosis of traumatic injury and accordingly the findings of these diagnostic tests are frequently used at trial by personal injury lawyers.
Strictly speaking, however, the findings of radiologists interpreting the raw data generated by these tests are opinions and opinion evidence needs to comply with the Rules of Court to be admissible.  If an MRI shows a traumatic injury it is not good enough to show up at trial with only the radiologists consultation report in hand.  If you want the Court to rely on the radiologists findings of injury the reports need to be served in compliance with Rule  40A (Rule 40A is being overhauled in July 2010 and you can click here to read my previous article discussing this) Reasons for judgement were released today by the BC Supreme Court showing this legal principle in action.
In today’s case (Wittich v. Bob) the Plaintiff was injured in a 2004 BC Car Crash near Merritt, BC.  She sued for her injuries seeking up to some $800,000 in damages.  She claimed various accident related injuries including a herniated disc at C5-6.  In support of this claim two CT Scan Reports were entered into evidence, the first taken before the crash and the second after the crash.  The later scan was “interpreted by the radiologist as showing….a c56 level …herniated disc“.
The radiologist’s consultation report did not comply with Rule 40A.  Accordingly the report was only admitted for the fact that the diagnosis was made but not for the truth of the opinion.  Ultimately the court did not make a finding that the herniated disc was caused by the car crash.    Madam Justice Bruce summarized and applied the law to the facts of this case as follows:

[143] Of particular concern is the plaintiff’s failure to call any medical opinion evidence to support a finding that she suffered a herniated disc at C5-6 during the accident. As part of Dr. Grist’s clinical records, Mrs. Wittich entered two CT scan reports; one taken prior to the collision and one taken shortly thereafter. While the later scan was interpreted by the radiologist as showing a change from disc degeneration at the C5-6 level to a herniated disc that was impinging on the nerves of the spinal canal, this evidence cannot be regarded as expert medical opinion. These reports do not comply with Rule 40 and contain no indication of the radiologist’s qualifications and expertise to make these findings. Thus they are only admissible for the fact that this diagnosis was made and not for the truth of their contents.

[144] Moreover, even if I were to accept these reports as expert opinion evidence, there is the cogent evidence of Dr. Maloon, an orthopaedic surgeon, which supports a contrary finding as to the existence of a disc herniation. Dr. Maloon provided a detailed explanation for his conclusion that Mrs. Wittich did not suffer from a herniated disc, which included factors related to his physical examination of Mrs. Wittich and the symptoms she presented with at the time of his examination and interview. Dr. Maloon was qualified as an expert in the field of orthopaedic surgery and qualified to give opinion evidence as to the existence, cause and prognosis of spinal cord injuries. His evidence was thoroughly tested in cross examination and held up to scrutiny. In my view, it would be in the most unusual circumstances that the court would prefer the radiologist’s report to the evidence to that of Dr. Maloon and I find there are no such circumstances in this case. There is no evidence of the radiologist’s qualifications or expertise and no explanation of the reasons underlying his diagnosis.

[145] As a consequence, I find there is really no medical evidence before the court that Mrs. Wittich suffered any injuries to her neck apart from soft tissue complaints. In this regard, it was Dr. Maloon’s evidence that she likely experienced such injuries in the accident, but he was unable to specify which tissues (muscles, ligaments, or facet joints) were damaged based on Mrs. Wittich’s subjective reporting of vague pain symptoms.

The Plaintiff’s claim was largely dismissed and damages of just over $30,000 were awarded.  This case serves as a reminder that if the findings of a radiologist make up an important part of your personal injury case the evidence has to be served in compliance with the rules governing expert opinion evidence.

The Standard of Care When Driving Near Children

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


We all know that children can be unpredictable.  As such motorists have to take special precaution when driving by pedestrian children.  The standard of what is safe will be stricter in these situations and reasons for judgement were released this week discussing this legal principle.
In this week’s case (Johnson v. Eyre) the 7 year old Plaintiff, who was riding his bike, was struck by the Defendant’s motor vehicle and sustained injuries.  Ultimately the lawsuit was dismissed because the Court found that “(the Defendant) simply could not avoid striking (the Plaintiff)…The collision occurred because the youths turned…into the path of the (defendant) vehicle…(the Defendant) took appropriate evasive action in the little time he had to react.”
Before dismissing the claim, however, Mr. Justice Greyell did a good job summarizing the standard of care motorists should exercise when driving by children.  The below quote is a useful summary of this area of personal injury law:
[15] The plaintiff relies on the following passage in Bourne v. Anderson, 27 M.V.R. (3d) 63 where Hood J. said at para 55:

55        In my opinion, once the presence of a child or children on a road is known, or should have been known, to the driver of a vehicle proceeding through a residential area where children live, that driver must take special precautions for the safety of the child or children seen, and any other child or children yet unseen whose possible appearance or entrance onto the road is reasonably foreseeable. The precautions include keeping a sharp look out, perhaps sounding the horn, but more importantly, immediately reducing the speed of the vehicle so as to be able to take evasive actions if required.

This passage was cited with approval by the Court of Appeal in Hixon v. Roberts, 2004 BCCA 335.

More on ICBC Injury Claims and Breach of Insurance

Written by admin on . Posted in Uncategorized. 48 Comments on More on ICBC Injury Claims and Breach of Insurance

I’ve written many times about the potentially steep financial consequences of being in breach of an ICBC Policy when an injury claim is made.
A frequent type of breach relates to misrepresenting who the principal operator of a vehicle is.   Reasons for judgement were released today demonstrating some of the consequences that occur when this type of a misrepresentation is knowingly made.
In today’s case (Deters v. Totovic) the Plaintiff was involved in a 2003 BC Car Crash.  She sued the owner and driver of the other vehicle involved (a mother and daughter respectively).  ICBC refused to provide coverage to the defendants claiming that they misrepresented who the principle operator of the vehicle was when they purchased their policy of insurance.  A Motion was brought before the BC Supreme Court asking the judge to decide if there was a misrepresentation at the time and therefore a breach of insurance.
Mr. Justice Smith decided that the Defendants did knowingly misrepresent who the principal operator of the vehicle was when purchasing insurance from ICBC.  A a result he held that the Defendants lost their right to indemnity from ICBC.
Mr. Justice Smith succinctly summarized the law relating to breach of insurance for principal operation misrepresentation as follows:

[5] Section 19(1)(b) and (e) of the Insurance (Motor Vehicle) Act, R.S.B.C. 1996, c. 231 [Act], as it was in force in 2003, said:

19 (1) If…

(b) an applicant for an owner’s certificate or driver’s certificate knowingly misrepresents or fails to disclose in the application a fact required to be stated in it,…

(e) an insured makes a willfully false statement with respect to a claim under a plan,

all claims by or in respect of the applicant or the insured are rendered invalid, and his or her right and the right of a person claiming through or on behalf of or as a dependant of the applicant or the insured to benefits and insurance money is forfeited.

[6] The regulations to the Act (now called the Insurance (Vehicle) Act) define the principal operator as “the person who will operate the vehicle described in an application for a certificate for the majority of the time the vehicle is operated during the term of the certificate.”

[7] The burden of proving that the insured knowingly misrepresented a material fact is on the insurer. The standard of proof is the civil standard of balance of probabilities. The question of whether or not there has been a knowing misrepresentation is to be determined on the basis of the circumstances that existed at the time the policy of insurance was issued:  Booth v. ICBC, 2009 BCSC 1346 at paras. 7-9.

Mr. Justice Smith pointed out that if the vehicle was insured with the daughter as the principal operator “the insurance would have cost approximately four times what was actually paid”.

The Court went on to make the following finding:

[28] In short, all of the evidence supports the inference, on the balance of probabilities, that (the Daughter) was, in fact, the principal operator of the vehicle during the period covered by the insurance certificate and was using it extensively for work purposes. That finding in itself does not necessarily mean that there was a breach of the insurance coverage because the question is whether or not there was a knowing misrepresentation at the time the policy of insurance was issued.

[29] At the time the policy of insurance was issued on June 25, 2003, (The Daughter) had been working in the T&F Sales job for approximately two months. The circumstances around the time the insurance policy was issued indicate that (the Mother) had to have known that (the Daughter) would be the principal operator of the Mazda—she needed it on a daily basis for her job. Therefore, I find that on the balance of probabilities, Smilja made a misrepresentation when she declared herself to be the principal operator in June 2003…

[31] I therefore find that there was a misrepresentation within the meaning of the Act and therefore the defendants’ right to indemnity for the plaintiff’s claim is forfeited pursuant to s. 19 of the Act. ICBC is also entitled to costs of this action.

What this ruling means, in practical terms, is that if the Plaintiff is successful in her lawsuit, ICBC would pay the judgement to the Plaintiff and then come after the Defendants personally for the damages they had to pay.  Depending on the severity of the claim the consequences could be anywhere from thousands to millions of dollars.  This case shows yet again that the short term financial advantages that can come with principal operator misrepresentation are far outweighed by the financial consequences of being in breach of a policy of insurance.

Gaps in Medical Treatment in ICBC Injury Claims

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


If you are involved in an ICBC Injury Claim and have significant gaps in your medical treatment will that reduce the value of compensation you are entitled to?  The answer is not necessarily.  If the gaps in medical treatment are unreasonable and the evidence demonstrates that more frequent medical intervention would have improved the course of recovery then the claim can be reduced for “failure to mitigate“.  However, a gap in medical treatment in and of itself will not reduce a claim for damages and reasons for judgement were released yesterday by the BC Supreme Court demonstrating this.
In yesterday’s case (Sidhu v. Liang) the Plaintiff was injured in 2 BC Car Crashes, the first in 2004 and the second in 2008.  He was not at fault for either crash.  He sued as a result of both accidents and the trials were heard at the same time.  The Court was asked to deal with the value of these ICBC Claims.  In the years from the first collision to the time of trial there were some significant gaps in accident related medical appointments.  One such gap was over 25 months.  The Defence Lawyer argued that the Plaintiff’s injuries were minor and healed quickly as evidenced by the significant gap in treatments.
Madam Justice Russell rejected this argument and held “I am prepared to conclude on the balance of probabilities of the evidence, that the current soft tissue injuries the plaintiff exhibits and the continuing pain that he has suffered are a result of the first accident which have continued to date, and have been aggravated by the second accident and therefore would not have occurred but for the defendants’ negligence.  I believe the plaintiff has continued to experience this pain despite the gap in his treatment, and while work has aggravated it, there is no evidence of an intervening event that could be attributed as the cause.”
The Court went on to award the Plaintiff $36,000 in Non-Pecuniary Damages.   In doing so Madam Justice Russell summarized the accident related injuries and their effect on the Plaintiff as follows:

67] The plaintiff’s position, which I accept, is that the medical evidence establishes that the first accident caused musculoligamentous injuries to his neck, back, hips, and elbows, resulting in chronic, persistent pain which continues to restrict his vocational, social and recreational activities.  Furthermore, the second accident caused a minor aggravation of the musculoligamentous injury to his neck.

[68] As a result of the injuries he sustained, the plaintiff has experienced functional limitations due to ongoing symptoms in his neck and left upper back, as well as residual symptoms in the elbows, and mid to low back.  These injuries interfere with his work ability as well as his ability to do chores and participate in his family construction project.  His wife and father have had to take on the physical household chores.  His wife testified that he became less physically active and has decreased his participation in family activities.  The plaintiff’s wife also testified that his pain has caused him to be moody and he also claims to have experienced emotional difficulties in the form of increased stress as a result of the accident.  Because of his modified work ability, the jobs he can take require him to work longer hours for less money and therefore he is facing increasing financial pressures, has less free time and therefore has decreased his social activities, all of which he asserts leads to his stress…

[71] While I have concluded that, according to the medical evidence, the accidents were the cause of the injuries, these injuries are improving, albeit slowly.  Dr. Gandham has estimated that the plaintiff will recover within two years and Dr. Heshler gives a similar guarded prognosis.  Dr. Connell is also optimistic.  Given that the plaintiff is young and healthy with a good prognosis for recovery, I am convinced that he will make a full recovery and thus assess his damages at 80% of the amount put forward by counsel, as I note the amount suggested is the upper range for these types of injuries.

Loss of Housekeeping Capacity in BC Personal Injury Claims

Written by admin on . Posted in Uncategorized.


When an injured person is less able to perform their usual tasks in and around the home they will often be awarded a higher amount for their Non-Pecuniary Damages and this loss can also be accounted for in awards for Special Damages, Cost of Future Care and Loss of Future Earning Capacity. However, British Columbia Courts have sometimes recognized the loss of past housekeeping capacity as a separate head of damage and award extra money for this specific loss.  Reasons for judgement were released today by the BC Court of Appeal discussing this area of law.
In today’s case (Campbell v.  Banman) the Plaintiff was awarded damages as a result of injuries and loss from 2 BC Car Crashes.  The award for damages included just over $22,000 for ‘loss of housekeeping capacity“.  The defendants appealed this award arguing it was not reasonable.  The BCCA disagreed and dismissed the appeal.  In doing so Madam Justice Saunders provided the following useful discussion of the law of diminished housekeeping capacity in BC Personal Injury Claims:

[11] The award for loss of housekeeping capacity is made in the shade provided by Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652, 4 B.C.L.R. (3d) 178 (C.A.). In Kroeker this Court, in a majority decision authored by Mr. Justice Gibbs sitting on a five judge division, without characterizing the nature of the award as pecuniary or non-pecuniary, affirmed the availability of an award for loss of housekeeping capacity. In reaching that conclusion Mr. Justice Gibbs said, in a passage said by the appellants to establish a mandatory judicial attitude of restraint:

[29]      There is much merit in the contention that the court ought to be cautious in approving what appears to be an addition to the heads of compensable injury lest it unleash a flood of excessive claims. But 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.

[12] The Court in Kroeker reviewed the award for loss of housekeeping capacity in the amount of $23,000, found it was inordinately high where the loss was assessed at 130 hours a year, decreasing over time (at an hourly rate of $10), and reduced the award to $7,000.

[13] This Court addressed the issue of loss of housekeeping capacity again in McTavish v. Mac Gillvray, 2000 BCCA 164, 74 B.C.L.R. (3d) 281. In McTavish the trial judge had awarded $20,000 for past loss of housekeeping capacity and $43,170 for future loss of housekeeping capacity, sums arrived at by reference to the cost of replacement services for 10 hours each week until age 60, at an hourly cost of $10 an hour. This Court dismissed the appeal, finding there was evidence family members replaced the housework Ms. McTavish formerly had performed, and she was not required to prove she would hire someone to perform the duties in order to be fully compensated for the loss of her ability to perform the tasks herself. In the majority reasons for judgment I observed as to Kroeker:

[73]      This Court, in Kroeker v. Jansen (1995), 123 D.L.R. (4th) 652; (1995) 4 B.C.L.R. (3d) 178; [1995] 6 W.W.R. 5 (C.A.) recognized that damages for past and future loss of housekeeping capacity may be awarded by a trial judge, even though housekeeping services were gratuitously replaced by a family member. Further, it recognized that, depending on the facts, this compensation may be by pecuniary or non-pecuniary damages, and if non-pecuniary, that there was no reason these damages could not be segregated.

[14] In my view, this case bears many of the same hallmarks as McTavish, although the extent of incapacity here is less and the damage award is accordingly attenuated.

[15] In particular, and notwithstanding the submissions of the appellants, there is evidence from Ms. Campbell and her common law husband that she had been, and still was at the time of trial, restricted in her ability to perform certain repetitive motions and those involving a certain degree of strength. Likewise Ms. Campbell and her common law husband testified he had accordingly assumed those tasks. It was open to the trial judge to accept that evidence. Further, there was no finding that the husband’s assumption of tasks formerly performed by Ms. Campbell was matched to any degree in a reallocation of duties between them…

[25] Last, the appellants are critical of the award for loss of housekeeping services on the basis it reflects an exercise in arithmetic and not an assessment.

[26] There is some force to the submission that the award should have been arrived at by assessment rather than arithmetic. An arithmetical calculation where, as here, there has not been any actual expenditure and the judge is simply estimating the value of the loss, suggests the order is untempered by judgment, and results in an award expressed in terms of precision beyond the courts faculty. To that extent, I would agree that the figures $8,132 and $10,920, awarded for past loss of housekeeping capacity are overly precise, and the award should have been expressed in more global terms. Nonetheless, it seems to me that the scale of damages is not something with which we should interfere, and thus any adjustment to the award to take account of the principle of assessment would be minor. Given this conclusion, I would not interfere with the order made.

[27] For these reasons I would dismiss the appeal.

Don't Like the Court's Order? Get it Entered Before Appealing

Written by admin on . Posted in Civil Procedure, Uncategorized. 44 Comments on Don't Like the Court's Order? Get it Entered Before Appealing

When prosecuting a personal injury claim various orders can be made in the course of litigation.  In Civil matters in the BC Supreme Court such orders have to be ‘entered’ before crystallizing.    Until the order is entered the Court maintains jurisdiction to review, clarify or potentially vary the order.  If you wish to appeal an order it is important to have it entered first.  Reasons for judgement were released today by the BC Court of Appeal discussing this important practice point in the context of an ICBC Claim.
In today’s case (Chand v. ICBC) counsel for ICBC appealed an order from a BC Supreme Court Master and later Judge.  At the time the Appeal was filed the original order was unentered.  In her reasons for judgement Madam Justice Kirkpatrick of the BCCA said the following regarding the importance of having an entered order before launching an appeal:
[29] The salient feature that I wish to note at this point is that it appears the power described in Buschau is restricted to amending an entered order.  The reason for restricting the application to entered orders is obvious.  Until the order is entered, the judge or master may, on application, reconsider the order.  Here, as I have noted, Master Baker’s order was not entered until 27 May 2009.  Accordingly, it was open to the parties to return before Master Baker at any time before that date to have him clarify the meaning of the stay order….

[41] In my opinion, on an application in which a party is seeking to determine the intention of an entered order, it is essential that the entered order be before the court.  Similarly, on an appeal from a master’s order, the appeal should not proceed until the court has before it the entered order appealed from.  To proceed in the absence of the entered order gives rise to unnecessary uncertainty.  The court hearing the application or the appeal must know that the order under consideration is not susceptible to review or variation by the master who made the order because, of course, until the order is entered, the master is not functus officio.  The proper course in light of the unentered order would have been for the chambers judge to direct ICBC to immediately appear before Master Baker for the purposes of clarifying his order.

[42]         Once the order is entered, the court is functus officio.  In R. v. Roberts, 2004 BCCA 436, this Court said that “[i]t is well settled that the court remains seized of a matter and is not functus officio until the formal judgment of the court is entered and, until that time, the court has the power to reconsider, vary or revoke its judgment” (at para. 7).

[43]         Variation is expressly authorized by the Rules of Court, under Rule 41(24):

The court may at any time correct a clerical mistake in an order or an error arising in an order from an accidental slip or omission, or may amend an order to provide for any matter which should have been but was not adjudicated upon.

[44]         There are limits as to what can be corrected under Rule 41(24). McLachlin and Taylor, British Columbia Practice, 3rd ed. by Frederick Irvine (Markham, Ont.: Butterworths, 2006), summarize these limits at 41-38 to 39:

Notwithstanding that R. 41(24) is much wider than the old “slip rule”, it cannot be used to amend or alter a substantive finding even though that finding might be demonstrated to be in error … R. 41(24) does not permit changing a final order where a judge has second thoughts about his order, or to permit the parties to provide fresh details on matters already before the court ….  Its proper use is (1) to rectify a slip in drawing the order which, if unamended, would produce a result contrary to the intention of the court or of the parties… or (2) to provide for a matter which should have been but was not adjudicated upon….  [citations omitted].

[45]         It does not appear that ICBC considered making an application under Rule 41(24).

[46]         In addition to Rule 41(24), the court has, through inherent jurisdiction, “the power to amend the entered order on the basis that it contained an error in expressing the manifest intention of the Court” (Buschau v. Rogers Communications Inc., 2004 BCCA 142, 237 D.L.R. (4th) 260 at para. 26, leave to appeal ref’d [2004] S.C.C.A. No. 221).  In the absence of evidence of irrevocable steps in reliance or undue prejudice, the court should correct the order (para. 27).  It is not in the interests of justice for an order to stand that does not reflect the parties’ true entitlements (para. 27).

[47] In the case at bar, no one seems to have addressed their mind to the fact that Master Baker’s order was unentered.  Since then, of course, the order has been entered and I consider that this Court has jurisdiction under s. 9(1) of the Court of Appeal Act, R.S.B.C. 1996, c. 77, to amend the order and exercise the jurisdiction invested in the Supreme Court.  Proceeding in this way avoids further litigation and expense, far too much of which has been wasted in this case to date.

The Jursidiciton of Trial Judges to Rule on "Trial Fairness" Matters

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

In a judgement released today the BC Court of Appeal discussed the power of Trial Judges to make orders relating to “Trial Fairness” matters.
In today’s case (Oberreiter v. Akmali) the Plaintiff sued for personal injuries from a 2004 BC car crash.  The matter went to trial and a Jury awarded the plaintiff about $118,000 in total damages.  Before the judgement was ‘entered’ it was discovered that the jury was given access to surveillance footage of the Plaintiff which had not been entered into evidence.  The Plaintiff successfully applied for a mistrial.  (Click here to read my summary of the mistrial application).
The Defendants brought the matter to the Court of Appeal arguing, amongst other things, that the Trial Judge had “no jurisdiction to entertain a motion after a jury has rendered its verdict and been discharged“.
The BC Court of Appeal disagreed with this submission and dismissed the appeal.  In doing so Madam Justice Smith gave the following useful and succinct outline regarding the powers of trial judges to rule on “trial fairness” matters:

[24] It is settled law that until a judgment or order has been entered, a trial judge continues to be seized of the matter before him or her. In Clayton v. British American Securities,[1935] 1 D.L.R. 432 at para. 83, [1934] 3 W.W.R. 257 (B.C.C.A.), the court noted that this was recognized as an “unquestioned practice” and “one of very long standing”. Similarly inBurke, the court concluded that, as a principle of law, a trial judge retains the remedial jurisdiction to declare a mistrial on an issue that goes to trial fairness (in that case it was whether there existed a reasonable apprehension of bias) after a jury verdict has been rendered and the jury discharged.

[25] In my view, there is no conflict in the authorities and none were provided that would suggest that a trial judge, before judgment is entered, does not retain jurisdiction to address a trial fairness issue. If that were so, then there would be no jurisdiction for a trial judge, as an issue of law, to address an application to reduce a jury’s award on damages that exceeded the “cap”. In my view, there was no arguable or meritorious issue as to whether the trial judge was functus officio to hear the application.

$80,000 Non-Pecuniary Damages for Knee Injury and Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Knee Injury Cases, ICBC Psychological Injury Cases, Uncategorized.

(Please note the below case was partially overturned on Appeal with a slight reduction in the Court’s assessed damages for cost of future care.  The BC Court of Appeal judgement can be found here)

Reasons for Judgement were released today by the BC Supreme Court, Vancouver Registry (Penner v. Silk), awarding a Plaintiff just over $555,000 in total damages as a result of injuries and loss from a 2005 BC Car Crash.
The collision occurred while the Plaintiff was rear-ended on a highway in Langley, BC.   The issue of fault was admitted at trial by ICBC leaving the court to deal with the assessment of damages.
The Plaintiff sustained a variety of soft tissue injuries that largely recovered in 6 months.  His knee, however, sustained long term injury.  Dr. Hirsch, a well respect specialist in physical medicine and rehabilitation, gave evidence that the Plaintiff suffered from “chronic knee pain caused by post-traumatic patellar tendonopathy as well as the development of patellofemoral joint syndrome.”    Dr. Hirsch testified that the Plaintiff would likely be left with ongoing problems as a result of this accident related injury.
In assessing the Plaintiff’s non-pecuniary damages (compensation for pain and suffering and loss of enjoyment of life) at $80,00 Mr. Justice Sewell made the following findings:
[36] Based on the whole of the evidence, I have reached the conclusion that Mr. Penner is suffering from chronic pain in his left knee and that that chronic pain is significantly impairing his ability to function, both at work and at home.  Pain is, of course, inherently subjective.  Based on the evidence before me, I conclude that there is a psychological component to Mr. Penner’s pain perception and that his quality of life and perception of pain would benefit from a course of vigorous, physical exercise and psychiatric intervention.  Dr. Riar and Dr. Smith agree that Mr. Penner is suffering from either adjustment disorder with depression or Major Depression.  Both are of the view that he would benefit from psychiatric intervention.  That intervention would probably consist of counselling with a psychologist or psychiatrist and the prescription of appropriate anti-depressant medication…
[39] As indicated above, my observation of Mr. Penner is that he is a driven, somewhat obsessive individual.  It is my view that much of Mr. Penner’s self-esteem is wrapped in his job performance.  Before the accident he was able to draw on very high levels of energy to permit himself to devote considerable energy both to work and his social and home life.  It is apparent to me that the symptoms he is experiencing, whether from depression or his organic injury, have contributed directly and indirectly to a significant diminution in Mr. Penner’s energy levels.  The preponderance of evidence before me satisfies me that Mr. Penner will continue to experience pain and mobility difficulties regardless of whether he avails himself of psychiatric intervention and/or a regime of physical exercise.  However, I am also of the view that a combination of such treatment, exercise and lifestyle changes would result in a significant improvement in the quality of Mr. Penner’s life and a diminution of his pain perception.  My view is that a necessary component of Mr. Penner’s adjustment to his altered circumstances would be for him to reduce the amount of time and energy he is devoting to his employment.

[55] Mr. Penner has satisfied me that the pain which he is experiencing is “real” in the sense that it is genuine and that he has honestly reported it in his evidence and to his treating physicians.  I am also satisfied, and it appears to be common ground, that the psychological component of Mr. Penner’s pain was caused by the defendant’s negligent act.  I am satisfied that Mr. Penner’s life has been significantly changed for the worse as a result of the defendant’s unlawful conduct.  Given his present condition and, in particular, the persistent pain he experiences, the dramatic degradation of the quality of his social and family life, his loss of libido and loss of ability to engage in activities that he formerly found pleasurable, or at least significant restriction in his ability to engage in those activities, I assess non-pecuniary damages in this case at $100,000 before taking into account the reasonable prospect that Mr. Penner’s condition could be significantly improved if he acts on the recommendations made by the medical experts in this case.

[56] The medical evidence in this case is that a regimen of exercise coupled with psychiatric treatment would be beneficial for Mr. Penner.  According to Dr. Smith such treatment would result in a very significant reduction in Mr. Penner’s perception of pain.  Dr. Riar and Dr. Gouws are of the view that Mr. Penner would benefit from psychiatric intervention to address his depressive symptoms.  Dr. Hirsch is of the view that Mr. Penner would benefit from a regimen of physical exercise.  I am, however, mindful of the fact that all of the doctors agree that Mr. Penner will continue to experience symptoms and that none of the medical evidence in this case quantifies with any specificity the probability that the recommended treatments will be effective.  It is also my view that psychiatric intervention and treatment of depression are somewhat problematic in terms of lasting benefits given the underlying causes of Mr. Penner’s depression.  Finally, I must take into account the substantial possibility that Mr. Penner’s psychiatric problems may recur or be worsened if he loses his current employment. In his report, Dr. Smith says this:

With effective treatment Mr. Penner’s problems will improve. Without treatment he may become more dysfunctional, and if Mr. Penner for some reason loses his job his mood would likely crash as a good deal of his self- esteem is built around his work performance.

[57] Taking these contingencies into account, I assess Mr. Penner’s compensable non-pecuniary damages in this case at $80,000.

Leave For Appeal Denied in Computer Hard-drive Disclosure Case

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 61 Comments on Leave For Appeal Denied in Computer Hard-drive Disclosure Case


In April of this year the BC Supreme Court ordered that a Plaintiff involved in a Brain Injury Claim from a BC Car Crash “produce for inspection by an independent expert a duplicate copy of his computer hard-drive and that the expert prepare a report identifying the number, nature, and time for all files relating to the use of the plaintiff’s Facebook account between the hours of 11:00 p.m. and 5:00 a.m., dating from July 23, 2005 to the present.” (Click here to read my post summarizing the trial decision).
The Defendant in this case sought greater disclosure including “production of information (from the Plaintiff’s computer hard drive) regarding the number, nature and time of the information files that related to the Plaintiff’s Hotmail account and all other computer activity occurring between the hours of 11:00 pm and 5:00 am.”  This application was dismissed by the Chambers Judge.
The Defendant asked the BC Court of Appeal permission to appeal this order arguing that such information would have been relevant in assessing the Plaintiff’s brain injury claim and that the Judge failed to turn his mind to the application properly.
The Court of Appeal refused to hear the appeal holding that the sought order was not supported by the evidence, specifically the Court of Appeal held as follows:

[22] At the plaintiff’s examination for discovery, he testified that he communicated with a friend on Facebook at night.  He also testified that he does have a Hotmail account but he had not “checked it forever”.  His mother testified that if anyone used the computer after 11:00 p.m. on weekdays, it would be the plaintiff (as opposed to other family members), and that he would probably be on the computer most nights.

[23] In the psychiatric assessment dated March 10, 2008, the plaintiff had apparently reported to his psychiatrist as follows:

[H]is sleep varies with the time one of his friends goes to bed.  This is because he spends a lot of time on Facebook chatting with this friend.

[24] I conclude that this appeal is prima facie without merit.  It is true that the chambers judge did not explain his reasons for dismissing that part of the application that is the subject of the appeal, but having reviewed the evidence that was before the chamber judge, it does not appear to me there was an evidentiary foundation for the request for the electronic records of his computer usage beyond Facebook.  Any other usage, such as was suggested in the argument before me (that the plaintiff may be using gaming websites or other such websites late into the night), appears to be somewhat speculative.

[25] I dismiss the application for leave to appeal.

You can read the full judgement by clicking here (Bishop v. Minichiello)

Unfortunately the Court of Appeal did not highlight any factors which will be of use in considering when applications for computer hard drives will be meritorious in personal injury claims.  With more and more information being stored on computers these days, however, such applications will become more frequent and it will only be a matter of time before the Court of Appeal has a chance to weigh in on this important issue.

Rule 68 Denied for Historic Personal Injury Case

Written by admin on . Posted in Civil Procedure, Uncategorized. 47 Comments on Rule 68 Denied for Historic Personal Injury Case

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, deciding whether a case that was filed before Rule 68 applied could later be brought into the scope of the Rule.
In today’s case (Sahota v. Sandulo) the Plaintiff sued as a result of personal injuries from a BC Car Crash.  The case was filed in New Westminster in 2005, a time when Rule 68 did not apply to that Court Registry.  The matter was set for Jury Trial.  As trial neared the Plaintiff brought an application to move the case into Rule 68 which would have a number of implications including getting rid of the defendants right to have the matter heard by a Jury.
Mr. Justice Holmes dismissed the application holding that “where an action is commenced before the introduction of Rule 68, the Court has no jurisdiction to make an order bringing the action within the Rule over the objection of one of the parties” In reaching this conclusion he agreed with the reasoning of Mr. Justice Macaulay in a case called Servos v. ICBC where the Court held as follows:

9          The plaintiff argues that any existing proceeding, regardless of the stage it is at, can be transferred into the pilot project if the parties consent.  In written argument, he says that the rule is silent on whether the court may order the transfer in the absence of consent and that, accordingly, the court has “the discretion to make any order, which it considers the circumstances require, particularly where it tends to prevent the misuse of the process”.  He does not suggest that the defendant is misusing the process in withholding consent in this case.  The plaintiff relies on Bell v. Wood, [1927] 1 W.W.R. 580 (B.C.S.C.), considered in MacMillan Bloedel Ltd. v. Galiano Conservancy Assn., [1994] B.C.J. No. 2477 (C.A.), for the proposition set out above.

10        With respect, I do not agree that the principle set out applies here.  In Bell, the court addressed its discretion to make orders regarding procedure as the circumstances may require “when the Rules are silent on the subject and especially when it tends to prevent misuse of the process” at (para. 6).  The particular question was whether an affidavit could be filed on an application for trial by jury when the rules were silent on the question.  MacMillan Bloedel addressed the court’s jurisdiction to permit the continuation of an examination for discovery on the issue of whether special costs should be ordered against a plaintiff that applied to discontinue the action five weeks before trial.

11        I read those decisions as affirming the court’s inherent jurisdiction to craft procedural rules when necessary because the rules do not anticipate the particular problem, but not as anything more.  Once a statute covers a matter, it is well understood that inherent jurisdiction cannot be relied on except to fill a functional gap or vacuum:  Unity Insurance Brokers (Windsor) Ltd. v. Unity Realty & Insurance Inc., [2005] O.J. No. 1069, 251 D.L.R. (4th) 368 (Ont. Div. Ct.).  It represents the reserve or fund of powers which the court may draw on as necessary when it is just or equitable to do so, but it is not unlimited and cannot be exercised contrary to any statutory provision. See Glover v. Minister of National Revenue (1980), 29 O.R. (2d) 392, 113 D.L.R. (3d) 161 (Ont. C.A.), aff’d [1981] 2 S.C.R. 561.

12        There is no gap in the present circumstances.  Rule 68 expressly requires the consent of the defendant.  It follows that my inherent jurisdiction does not extend to overriding the defendant’s lack of consent and directing the transfer of the proceeding into the pilot project.

This case will be a relatively short lived precedent, however, as Rule 68 is coming to an end as of July 1, 2010.  (Click here to read my previous post discussing Rule 68’s replacement with the New BC Supreme Court Civil Rule 15).