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$8,000 Non-Pecuniary Damages for "Not Substantial" Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, (Gradek v. DhaimlerChrystler) awarding a Plaintiff just under $10,000 in total damages as a result of a 2006 BC Car Crash.
The collision occurred in an intersection as the Plaintiff was attempting to drive through.  The Defendant made a left hand turn in front of the Plaintiff.  Both Liability (Fault) and Quantum of Damages (Value of the case) where at issue.  The Court found that the left hand turner was 100% responsible for the crash. Paragraphs 21-34 of the case are worth reviewing for a good discussion of the law concerning fault for intersection crashes.
Mr. Justice Savage found that the Plaintiff “exaggerated the impact of his injuries” and that he suffered nothing more than relatively minor soft tissue injuries.  In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $8,000 the Court summarized the Plaintiff’s injuries as follows:

[35] Gradek’s evidence regarding the impact of the injury on him is at times contradictory and confusing.  Gradek evidence contradicts that of his physician, Dr. Milne, who was called as a witness by Gradek, was qualified as an expert, filed an expert report and testified.

[36] Gradek description of the impact, however, accords with the somewhat unusual damage caused to the left front bumper of his vehicle.  With respect to the impact of the accident on him, I accept the evidence of Dr. Milne where Gradek’s evidence conflicts with that of Dr. Milne.  I find that Gradek has exaggerated the impact of his injuries.

[37] Dr. Milne testified that he found objective signs of injury on examination which he conducted on May 15, 2006.  The accident occurred on May 13, 2006.  Gradek was seen in Dr. Milne’s office but by another physician on May 14, 2006.  Gradek was diagnosed with soft tissue injuries, namely, a tender Trapezii muscles and tender Latissimus dorsi muscle.  He was prescribed Flexiril for ten days and Naprosyn for ten days.  Gradek was prescribed physiotherapy.  He was off work.  On May 23rd, he was much better but lower back and neck pain persisted as did the objective signs of injury.  Gradek was advised to continue to physiotherapy and to return to work on May 29, 2006.

[38] Gradek was seen again on May 30, 2006 he said he was 50 percent improved but unable to return to work.  He was advised to return to work on June 5, 2006, which he did.  Gradek was seen again on June 19, 2006 and July 3, 2006.  He had continuing minor complaints that were not severe enough to warrant prescription medication.

[39] Gradek was next seen in December 2006 where he reported minor complaints for two days, but had been fine for the last four to five months.  He was prescribed Naprosyn for five days.  Gradek was not seen again until May 5, 2007 where he had a headache and neck pain for three days.  Gradek reported that he had no pain between August 2006 and May 2007 other than for two days in December 2006 and three days in May 2007.

[40] Gradek was last seen by Dr. Milne June 15, 2009.  There were no specific complaints although he was still experiencing occasional right side pain.  This did not prevent him from engaging in vigorous exercise.  I accept Dr. Milne’s summary as a fair summary of the injuries and consequences with one exception, as noted below.  Dr. Milne summarizes:

In summary, Mr. Gradek Henryk was involved in a motor vehicle accident in May 13, 2006.  He incurred soft tissue injuries to the neck and lower back which resulted in him missing 4 weeks of work in 2006.  His injuries were not substantial and he shows no evidence of long term damage as a result of this motor vehicle accident.

The parties agree that Dr. Milne’s reference to four weeks of missed work in 2006 is in error as earlier in the report he specifies three weeks which is also consistent with employer records.


The New BC Supreme Court Civil Rules – a More Detailed Look

Written by admin on . Posted in Civil Procedure, Uncategorized. 118 Comments on The New BC Supreme Court Civil Rules – a More Detailed Look

Due in part to my recent articles on the New BC Supreme Court Civil Rules I had the opportunity to lead a discussion on the new rules this weekend before a group of distinguished BC Personal Injury Lawyers at the Westin Bayshore Hotel.
Afterwards several lawyers in the audience approached me for a written summary of my presentation.  Not having one handy I determined this would be as good a place as any to produce a written summary so here goes:
Introduction:
As many of you know the BC Supreme Court Rules have been overhauled.  The New BC Supreme Court Civil Rules come into force on July 1, 2010 so anyone with a BC Civil Practice needs to quickly get up to speed on these Rule Changes.
The good news for those of you not familiar with the New Rules is that they are largely “new” in name only.  More than anything else the “new” rules are simply the current rules renumbered and reorganized in what is supposed to be a more user friendly fashion.  About 95% of the current rules are left intact under the new system with the exact or almost exact language in place.
This is good news for lawyers familiar with the current system as many of the precedents we are familiar with interpreting and applying the current Civil Rules will continue to be of use under the new system.
Proportionality:
There is, however, one important exception to the overall similarities and that is that the “object” of the New Rules has changed.  Under the new system the object will be “securing the just, speedy and inexpensive determination of a proceeding on its merits, including, so far as is practicable, conducting the proceeding in ways that are proportionate to the amount involved in the proceeding, the importance of the issues in dispute and the complexity of the proceeding”
Since the New Rules will be subject to this overall concept of “proportionality” there is room for some new direction in the interpretation and application of the rules which have been reproduced word for word from their current form.
Although the new rules are largely the same as the current ones there are a few substantive changes that are worth highlighting.
Starting a Civil Action:
The first thing worth noting is that the Writ of Summons and the Appearance to a Writ of Summons have been abolished.  To start a claim under the new system you file a “Notice of Civil Claim” and to respond to this you file a “Response to a Civil Claim“.   These are nothing more than the Statement of Claim and Statement of Defence that we have under the current system.
When the new rules were being debated there was some discussion in shortening the amount of time a party had to serve a Notice of Civil Claim once filed.  Fortunately this change did not make its way into the final draft and litigants will still have one year within which to serve the Notice after filing.  This time period often comes in handy in the prosecution of personal injury claims with an unknown prognosis.
Changes to the Discovery Process:
Once the lawsuit is started the New Rules have made some changes to the Discovery Process, with respect to Discovery of Parties, Documents and Witnesses.
Discovery of Documents:
The “Demand for Discovery of Documents” has been abolished.  Instead, all parties to a civil action will have an automatic obligation to make discovery of documents within 35 days at the end of the “pleading period“.  Rule 7-1(9) creates a continuing obligation on parties to ensure that their list is up to date.  Failure to do so may prevent a party from putting documents into evidence (Rule 7-1(21)).
If a party is dissatisfied with the disclosure they have received they can make an application for a supplementary list of documents as set out in Rule 7-1(11).
Significantly, the test for what documents are discoverable has been altered.  Under the current system parties must disclose documents “relating to every matter in question in the action“.  Under the new rules this test has been changed to “all documents that are or have been in a parties possession or control that could be used by any party to prove or disprove a material fact” and “all other documents to which a party intends to refer at trial“.
This new test is supposed to be narrower in scope than the current one.  Time will tell how this new test will change disclosure requirements in the prosecution of personal injury actions however, given the fact that this new test will be applied alongside principles of proportionality there very well may be narrower disclosure requirements in smaller personal injury claims and greater obligations in the prosecution of more serious claims.
Examinations for Discovery:
Moving on to Examinations for Discovery a few noteworthy changes have been made.  Under the current system there is no time limit to the length of discoveries.  If faced with an uncooperative party or a long-winded lawyer these can go on for days and days.  This has been changed under the new system with a 7 hour cap on examinations for discovery.  This cap can be lifted with the consent of the parties or with Court order.    Rule 7-2(3) sets out the factors the Court can consider when deciding whether to permit a longer discovery.  These factors are worth reviewing and include the conduct of the party and the conduct of the examining lawyer
An important examination for discovery loophole has also been plugged.  Oftentimes questions asked at discovery are answered after the fact by letter further to “requests” made at discovery.  Unfortunately the current rules do not provide any mechanism for the admissibility of such evidence at trial.   While such evidence would normally go in without incident one could not be guaranteed such an outcome if faced with an uncooperative opposing lawyer. This has been remedied under Rule 7-2(23) of the New Rules which holds that answers made to discovery requests by follow up letter are deemed to be questions and answers given under oath at the examination for discovery.  This change will give counsel more confidence that they can use admissions made further to requests to advance their case or damage their opponents at trial.
Interrogatories:
Interrogatories are as good as dead under the New Rules.  While they still exist Rule 7-3(1) does not permit their use except with consent or with court order.  This is welcome news with respect to personal injury claims as some defence lawyers oppressively use interrogatories in an attempt to get discovery of information multiple times.
Discovery of Witnesses:
The current system does little to assist litigants in determining which lay witnesses their opponents will bring to trial.  This has been changed under the new rules and the Court will have greater powers to compel such disclosure.
Parties to civil actions will be able to request “Case Planning Conferences” and “Trial Management Conferences” (I discuss these at greater length below).
The court has the power to order disclosure of witness information at these conferences.  Specifically under Rule  5-3(j) the court can make an order with respect to “witness lists” at a Case Planning Conference.  Even if no such order is made parties will need to disclose names and addresses of all lay witnesses they will rely on at least 28 days before trial as set out in Rule 7-4(1).
At Trial Management Conferences Courts can go further and have the power to order “will say” summaries of lay witness evidence as set out in Rule 12-2(g).  Time will tell how often such orders are made but given the fact that one of the well established purposes of the Rules is to avoid trial by ambush I imagine such orders will be made routinely in personal injury claims.
Expert Witnesses:
One of the biggest changes under the new rules is that relating to expert opinion evidence.  I have written about this before and you can click here to read my previous summary of these important changes.
Fast Track Litigation:
Another significant change is that relating to fast track litigation.  I have previously written about these changes and you can read my previous article by clicking here.
CPC’s and TMC’s:
As mentioned above the new rules have introduced Case Planning Conferences and Trial Management Conferences.  These give the Court greater control and power over an action earlier in the litigation process and the Rules discussing these conferences are worth reviewing.
Briefly any party to a civil action may request a Case Planning Conference once the Pleading Period expires.  The court can also order such a conference on its own motion.  Once set the litigants will need to filed a Case Plan Proposal which will include plans for discovery of documents, examinations for discovery, dispute resolution, expert evidence, witness lists and trial estimates and intended mode of trial.  Affidavits will not be permitted at CPC’s and instead the court orders will be based on submissions of the parties (or their counsel).  Rule 5-3 sets out the orders a Court can make at a CPC.
Originally it was proposed that parties would have to personally attend CPC’s.  Fortunately this requirement did not make its way into the final draft and parties are permitted to attend via counsel as set out in Rule 5-2(2).
Trial Management Conferences (TMC’s) will be required in all actions.  These must be held at least 4 weeks before trial and “if practicable conducted by the judge who will preside at trial”.  This is a welcome requirement as under the current system litigants rarely know who their judge will be until a day or two before trial.  Knowing who your judge will likely be ahead of time will assist in preparing your trial in accordance with such a  judge’s preferences and it will certainly be a welcome change for the judge to know something about the case a month or more before trial.
Rule 12-2(9) sets out the orders that Judges can make at TMC’s and these are worth reviewing.
At first read it appears that parties must personally attend TMC’s although Rule 12-2(5) sets out an exception permitting a lawyer to appear provided that the party “is readily available for consultation during the TMC, either in person or by telephone“.
Transition:
Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
There is a bit of leeway built into the transition process as Rule 24-1(14) states that “If a step in a proceeding is taken before July 1, 2010, the former Supreme Court Rules apply to any any right or obligation arising out of or relating to that step if and to the extent that that right or obligation is to have effect before September 1, 2010.”    This is very little leeway however and the new Rules will be in effect by July with no exceptions after September so now is the time for all of us to start getting up to speed.

More on BC Injury Claims and Mode of Trial

Written by admin on . Posted in Civil Procedure, Jury Trials, Uncategorized. 52 Comments on More on BC Injury Claims and Mode of Trial

Further to my previous post about parties flip-flopping on their choice to have a Trial by Jury in a BC Injury Claim reasons for judgement were released today considering the issue of “whether or not a party who has taken the necessary two steps to require a trial by jury…can change that mode of election before the trial commences“.
In today’s case (Iskum v. Badali) the Plaintiff was involved in two motor vehicle collisions.  The Plaintiff sued and both cases were set for trial.  The defence lawyers in each lawsuit filed Jury Notices within the time frames required.    The Defendants paid the Jury fees as required by the Rules of Court.  Late in the litigation new defence lawyers were appointed and 10 days before trial they told the Plaintiff’s lawyer that they intended to have this matter tried before a judge without a jury.  The Plaintiff objected arguing that it was too late for the defendant to change their mind.
Madam Justice Griffin agreed with the Plaintiff and reasoned as follows:

[10] Here, the plaintiff did not exercise any right to trial by jury.  The plaintiff simply did not contest the defendants’ election of trial by jury.

[11] Thus, the issue before me does not have to do so much with a party’s right to a jury trial, rather, it has to do with a party’s right to know the mode of trial no later than 30 days before trial.  The issue properly framed is whether or not a party who has taken the necessary two steps to require trial by jury, as set out in Rule 39(26), can later change that mode of election before the trial commences…

[30] I find that by taking the two steps set out in Rule 39(26), the defendants “required a jury,” and therefore the payment of the subsequent fees is mandatory pursuant to s. 17 of theJury Act.

[31] The defendants suggest that having paid the first set of fees, they can decide to not pay the second set of fees simply by giving notice to the sheriff that they no longer require a trial by jury.  They suggest that s. 19 indicates that the trial judge has discretion to allow this.

[32] I find that s. 19 of the Jury Act does not give a party who has elected trial by jury the right to simply give notice that it will not pay the jury fees required on a daily basis and thereby unilaterally un-elect the mode of trial by jury.  Rather, the payment of those fees is mandatory and only if they are not paid will the sheriff bring this to the attention of the court to make such order as the court considers just.  This preserves the court’s inherent jurisdiction to control its own process, but does not confer a procedural right on a party to simply “un-elect” trial by jury by not paying subsequent fees.

[33] Here, the defendants attempted to unilaterally un-elect trial by jury within 10 days of the trial starting by simply advising the sheriff and the other side that they no longer wished to proceed by trial by jury.  I conclude that the Rules of Court do not allow for such a re-election within 30 days before trial.  I find that the defendants had no authority to do so under theRules of Court.

[34] It is clear that the Rules of Court do not allow for a party to elect trial by jury late in the process.  This election must be made within strict time limits set out in Rule 39(26).

[35] The mode of trial is very relevant to how the parties will prepare for trial and is also relevant to settlement discussions before trial.  The Rules of Court as a whole recognize that it is not efficient to conduct civil trials by ambush.  Civil trials are more efficient and settlement is more likely if parties have advance notice of not just the case they have to meet, but the mode of trial.  The 30-day notice period in Rule 39(26) is there to provide parties with some certainty as to the mode of trial with a goal of efficient resolution of disputes.

[36] As noted by Mr. Justice Taylor of our Court of Appeal in Hoare v. Firestone Canada Inc. (1989), 42 B.C.L.R. (2d) 237 at 241:

The learned judge very properly emphasized the importance of the right to elect for jury trial.  But on a broad consideration of the rules and authorities which has been possible in these appeal proceedings I have concluded that the election is intended to be made once only, at a particular stage, and for good reason.  If the trial may be before judge and jury, rather than judge alone, that is generally an important consideration for both parties in preparation of the case and perhaps, indeed, in the selection of counsel.  It is, I think, for these reasons that the rules require the election to be made, once for all, soon after the action is set down, instead of leaving the parties free to elect thereafter on the basis of later developments.

[37] As a matter of common sense and in light of the clear purpose of the Rules of Court to avoid trial by ambush, the time limits imposed on the mode of selection of trial apply whether the mode of trial is by jury or is by judge alone.  I conclude that were it intended to be otherwise, there would be an express provision in the Rules of Court, pursuant to which a party could unilaterally elect to proceed by judge alone, despite having elected trial by jury by meeting the requirements of Rule 39(26) at least 30 days before trial.  There is no such provision.

[38] Rather, once the election has been made and has crystallized by the taking of the two steps set out in Rule 39(26) at least 30 days prior to trial, the only basis for a party to set aside the election of trial by jury is pursuant to Rule 39(27) on the basis that the case is unsuitable for trial by jury.

[39] On its face, Rule 39(27) would seem to apply only to the party who has received the jury notice.  However Rule 35(4) provides that the court, on its own motion or on the motion of any party, may order that the trial proceed without a jury on any of the grounds set out in Rule 39(27).  In this regard, see Robitaille v. Vancouver Hockey Club Ltd. (1979), 12 B.C.L.R. 335 (S.C.), aff’d 14 B.C.L.R. 377 (C.A.).

[40] This brings me back to the B.C. Court of Appeal decision in Molnar.  I conclude that having elected trial by jury, the defendants must proceed with a jury unless they can discharge the onus of proving that this matter is not suitable for a jury on the grounds set out in Rule 39(27).

[41] Here, the defendants did not apply at this pre-trial conference to set aside the jury notice, and advanced no argument based on the grounds set out in Rule 39(27).  It is clear that the defendants simply asserted that they had a right to re-elect trial by judge alone at any time prior to the start of trial.  I have found that the Rules of Court do not permit this.

This is the first case that I am aware of dealing with these specific facts making this case a useful precedent.  Now the question is will this precedent continue to be useful once the new BC Supreme Court Civil Rules come into force?

The answer appears to be yes.  This case turned on the Court’s interpretation and application of Rule 39(26).  This rule is replaced in the New BC Supreme Court Civil Rules at Rule 12-6(3) which is almost identical to the current rule in its language and requirements (there are some minor changes in the timelines involved but otherwise the rules appear identical).  If a party wants to change their minds after filing a Jury Notice they better do so before paying the Jury Fees otherwise it appears to be too late.

To read my other posts cross referencing the current Rules with the New BC Supreme Court Rules simply click here or on the New BC Supreme Court Rules tag below.

$70,000 Non-Pecuniary Damages for Chronic Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court Awarding damages as a result of a BC Car Crash.
In today’s case, (KT v. AS) The Plaintiff was involved in a motor vehicle collision while seated as a passenger in 2005.  It was a significant intersection collision.  The Plaintiff was 17 years old at the time.  The Plaintiff claimed that she suffered both physical and psychological injuries as a result.
Madam Justice Ballance largely rejected the Plaintiff’s claim for accident related psychological injuries but did accept the claim for physical injuries.  In awarding the Plaintiff $70,000 in non-pecuniary damages the Court summarized the Plaintiff’s accident related physical injuries as follows:

[210]     According to the plaintiff, since the accident she has felt an ache along with tightness and sore muscles in her low back.  She says that every few weeks the pain is so intense that she keels over.  She testified that in the first six months or so following the accident, her neck and muscles were stiff and knotted, particularly when her head was bent.  Her headaches would follow at least once per week, building up slowly from the back of her neck.  At times they lasted an entire day.  Unlike the headaches that she experienced prior to the accident, eating did not alleviate the pain in her head.  Also within the initial six months time frame, the plaintiff said she would feel a sharp pinching sensation in her upper back/trapezius area a few times each month that seemed to come out of nowhere.  She testified that at her last appointment with Dr. Smith roughly 22 months post-accident,  her neck was still stiff and she was still experiencing intermittent sharp pinching pain in her shoulder blade/trapezius area.  Her low back continued to produce a dull ache most of the time that fluctuated considerably in intensity depending on her activity.

[211]     The plaintiff says that she has not had a pain-free day since the accident.  In terms of her current symptoms, the plaintiff claims that her low back pain, of variable intensity, persists and is her dominant problem.  Physical activities such as soccer, jogging and extensive walking, climbing up or descending stairs can cause a flare-up of pain.  However, the postures that are most aggravating are those which appear to be innocuous, such as sitting and static standing for prolonged periods.

[212]     The plaintiff also continues to experience episodic pain in her neck and upper trapezius area.  She claims that the jabs of pain in her shoulder blade area have become infrequent, flaring up roughly once per month.  Although she still suffers headaches, especially when she sits down for long periods to study, they have substantially diminished in their frequency.  Her hips and “upper butt” area have not caused her difficulty for a very long time.

[213]     The defence concedes that the plaintiff sustained mild to moderate soft tissue injuries to her neck and back.  As to her low back injury, the defendants assert that, at most, the accident caused a temporary aggravation of an “ongoing injury process” due to her pre-existing injuries and core weakness.  It should be evident from my discussion of the expert medical evidence and, specifically, my disapproval of Dr. Hepburn’s opinion, that I find the evidence does not support the defendants’ position that the plaintiff’s current low back pain is basically the same as the dysfunction in her upper “butt” sacroiliac joint or hip regions experienced before the accident.

[214]     The evidence amply establishes that the accident caused musculoskeletal injuries to the plaintiff’s neck, upper trapezius (left shoulder area) and her lumbar spine.  Relying on Dr. Hershler, Dr. Jung and Ms. Cross, I also find that it is more probable than not that the accident injured the facet joints of the plaintiff’s lumbar spine.  I find, as well, that it caused her headaches secondary to her neck pain, injured her left sacroiliac joint and aggravated her pre-accident difficulty with the right side of that joint.  On balance, I am not persuaded that she suffered a costovertebral injury as opined by Dr. Jung.

Another interesting aspect of this decision was the Court’s discussion of the Defence Medical Evidence.  The Defence hired Dr. Hepburn, a retired orthopaedic surgeon, to conduct a so-called ‘independent medical exam‘ of the Plaintiff.  Madam Justice Ballance largely rejected this expert’s evidence and in doing so made the following critical comments:

191]     Since his retirement in 2007, Dr. Hepburn’s medical practice has been solely devoted to conducting independent medical examinations.  Virtually every referral examination he receives comes from defence counsel and ICBC.

[192]     By his own admission, a mere 10%-15% of Dr. Hepburn’s practice prior to his retirement involved soft tissue injuries, and even then he was not involved in their ongoing management and treatment.  Dr. Hepburn testified that, while in practice, he did not treat patients with back injuries who had not suffered a fracture, slipped disc, disc prolapse or other type of injury requiring surgical intervention.  Generally, he would not even see such patients and would typically refer them to a specialist better trained to treat ongoing non-orthopaedic soft tissue injuries, such as a physiotherapist and physiatrist.

[193]     Dr. Hepburn could not recollect treating any costovertebral joint injuries, and testified that he only treated orthopaedic facet joint injuries (dislocations and fractures) for which surgery can produce some benefit.

[194]     As Dr. Hepburn testified, it became apparent that, although he was qualified as an expert in the diagnosis and prognosis of soft tissue injuries, his expertise lies almost exclusively in the field of orthopaedics.  This, however, is not an orthopaedic case.  It is a claim involving chronic soft tissue injuries which cannot be repaired through surgical intervention.

[195]     The plaintiff told Dr. Hepburn that her major problem related to her low back.  She also complained of pain in her left shoulder, a stiff neck, and headaches.  Dr. Hepburn agreed that the plaintiff likely suffered some soft tissue injury to her neck and knee from the accident.  However, he found it unclear as to whether her lower back pain was connected to the accident.  In this regard, he seemed to place some reliance on his understanding that there had been no complaint of back pain noted in the plaintiff’s medical records in the months following the accident.  That is a misconception.  The physiotherapy records are replete with the plaintiff’s complaints of low back pain in the months immediately after the accident.  The treating physiotherapist’s discharge note, which formed part of Dr. Smith’s file, leaves no doubt that the plaintiff’s lumbar spine was the chief area of treatment throughout the many sessions.  I can only conclude that Dr. Hepburn’s review of those records was superficial.

[196]     As an aside I would also note that the plaintiff’s controversial ICBC statement tendered into evidence by the defence itself refers to complaints of low back pain within the first two weeks following the accident.

[197]     In addressing the plaintiff’s pre-accident physical difficulties, Dr. Hepburn seemed to suggest that it would be legitimate to interpret her physiotherapist’s notations of sacroiliac joint pain as being medically equivalent to a notation of unspecified low back pain.  The implicit suggestion was that the plaintiff’s post-accident low back pain is the same as her sacroiliac joint complaints before the accident and, accordingly, was not caused by the accident.  He went so far to say that, in all likelihood, the plaintiff actually had low back pain and not sacroiliac joint dysfunction when she saw her physiotherapist before the accident.  I have previously made clear that I reject the free-floating notion that a physiotherapist would confuse those distinct anatomical areas.  His evidence on this point distinguished Dr. Hepburn from the other medical experts who gave evidence on the point.  It caused me considerable concern.

[198]     I also found it strange that in his report, Dr. Hepburn described the plaintiff’s headache complaints as falling beyond his area of expertise.  The preponderance of all of the other medical opinion evidence, which I find credible, is that the plaintiff’s post-accident headaches probably stem from her injured neck.  In his report, Dr. Hepburn did not allow for the prospect that the plaintiff’s headaches could be cervicogenic in origin, and represented referred pain from her injured neck.  He was only prepared to admit that potential in cross-examination.  Instead, in his report he had implied that the plaintiff’s headaches had a psychological source by suggesting that they could be addressed by medication for anxiety.  In my view, Dr. Hepburn’s assessment of the plaintiff’s ongoing headaches was not evenly balanced.  That too was of concern.

[199]     Dr. Hepburn did not find a restricted range of movement in the plaintiff’s spine.  He explained that the dual inclinometer applied by Dr. Jung is not used by him or any orthopaedic surgeon to his knowledge.  That does not mean that measurement with that device is not the gold standard.  I was most impressed with Dr. Jung’s explanation of the frailties of the so-called “eyeballing” assessment of range of motion and the superior measurement capability of the device he used.

[200]     Dr. Hepburn was adamant that the manner in which Dr. Jung and Dr. Hershler purported to diagnose a potential facet joint injury was not adequate.  He testified that a definitive diagnosis cannot be made without proper imaging studies such as a bone scan, CT scan or MRI.  He stood by his opinion that there was no facet joint injury that he could detect on his examination of the plaintiff.  Dr. Hepburn’s comments regarding the diagnosis of facet joint injury illustrates the difference between the medical approach to diagnosis for the purposes of determining causation, and the legal approach to the question of causation.  As noted by the Supreme Court of Canada in Snell v. Farrell, [1990] 2 S.C.R. 311, [Snell ] at para. 34:  “Medical experts ordinarily determine causation in terms of certainties whereas a lesser standard is demanded by the law.”

[201]     With respect to Dr. Jung’s diagnosis of costovertebral injury, Dr. Hepburn opined that such an injury is quite rare and would normally be associated with severe trauma such as in an individual with broken ribs.  He suggested that it would take a “divine talent” to diagnose this type of injury based on physical/clinical presentation alone.

[202]     Relying on Dr. Hepburn’s opinion, the defence argues that the plaintiff’s subjective pain complaints which have continued for more than four years after the accident are inconsistent with the fact that her spine has suffered no structural damage or other ominous pathology.  The underlying logic appears to be that pain and chronic injury do not occur in the absence of orthopaedic or other structural injury.  That notion offends common sense and is blind to the credible explanations given by Drs. Jung and Hershler and Ms. Cross as to the nature of soft tissue injury.

[203]     In the end, I consider it unsafe to give any weight to the opinions expressed by Dr. Hepburn.

ICBC Uninsured Motorist Claims and the Health Care Costs Recovery Act

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

Further to my previous posts on the Health Care Costs Recovery Act, I recently had the opportunity to scrutinize the Act’s application to Uninsured Motorist Claims under Section 20 of the BC Insurance (Vehicle) Act.  It was a a bit of a lengthy exercise so I thought I would share my findings for the benefit of anyone else researching this topic.
A representative of the Government familiar with the HCCRA told me that the BC Government’s initial position when the HCCRA came into force was that it applied to BC Car Crash cases where the Defendant is uninsured and in cases where the Defendant is in breach of their insurance.  In my recent experience suing Defendants who were in breach of their insurance the Government required notice about the claim but did not require recovery of health care costs.  (Please note I am not speaking on behalf of the BC Government here, I am simply highlighting my past experiences with this act, so if you are prosecuting such a claim please satisfy yourself whether or not the Act applies).
Where a Defendant is Uninsured at the time of the crash (as opposed to in breach of their insurance) the HCCRA appears to apply at first glance.
Section 24 of the Health Care Costs Recovery Act holds in part that:

(1) Subject to this section, this Act applies in relation to any personal injury suffered by a beneficiary, whether before or after this subsection comes into force….

(3) This Act does not apply in relation to health care services that are provided or are to be provided to a beneficiary in relation to

(a) personal injury or death arising out of a wrongdoer’s use or operation of a motor vehicle if the wrongdoer has, when the injury is caused, coverage under the plan, as those terms are defined in the Insurance (Vehicle) Act,

So on strict reading the HCCRA appears to apply to BC Car Crash Cases where a Defendant motorist is uninsured because in these circumstances the “wrongdoer” does not have “coverage under the plan“.  If a Plaintiff sues a Defendant in these circumstances the Government’s claim arguably should be advanced.  Practically speaking, however, Plaintiff’s rarely recover anything from Uninsured Defendants and instead take advantage of the Benefit available under section 20 of the Insurance (Vehicle) Act.

Specifically, Section 20 of the Insurance (Vehicle) Act permits people injured by Uninsured Motorists in BC to apply to ICBC for ‘payment of damages to which he or she claims to be entitled to’.
If you dig a little deeper ICBC appears to be under no obligation to pay HCCRA damages in a settlement or judgement in Section 20 Claims because of the Deductions set out in section 106 of the Insurance (Vehicle) Regulation which holds that “No amount shall be paid by (ICBC) under section 20…of the Act in respect of that part of a claim that is paid or payable as an insured claim“.
For the purpose of s. 106 of the Insurance (Vehicle) Regulation “insured claim” means “any benefit, compensation similar to benefits, right to indemnity or claim to indemnity accruing to a person entitled to benefits, compensation or indemnity...”
It is hard to imagine a successful argument holding that the right to Government Paid Health Care under MSP is not a ‘benefit‘ as used in the above definition of ‘insured claim‘.  So, in summary, while the Health Care Costs Recovery Act appears to be triggered in tort claims against Uninsured Motorists, ICBC appears to not have to pay any portion of such a claim when a Plaintiff applies for benefits to ICBC under s. 20 of the Insurance (Vehicle) Act because of the deduction they are entitled to under s. 106 of the Insurance (Vehicle) Regulation.  Clear as mud folks?

$40,000 Non-Pecuniary Damages for Young Mom With Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, awarding just over $43,000 in total damages to a Plaintiff as a result of a 2005 car crash.
In today’s case (Daniels v. Haaksma) the Plaintiff was a passenger in a vehicle that was rear ended.  As a result of the collision she suffered “mild to moderate soft tissue injuries to her lower and mid-back, and moderate soft tissue injuries to her neck. ”  Mr. Justice Ehrcke found that while these injuries “resulted in considerable pain, discomfort and loss of range of motion, as well as headaches and loss of sleep”  these largely improved after 6 months and ‘substantially recovered” 3.5 years after the crash when the Plaintiff was injured in a subsequent collision.
In awarding $40,000 for non-pecuniary damages for the Plaintiff’s pain and suffering and loss of enjoyment of life the Court stressed the fact that the Plaintiff was a young mother at the time of the crash and that her injuries caused her to lose out “on experiencing the full joy of raising her son when he was an infant“.  In assessing the Plaintiff’s damages at this figure Mr. Justice Ehrcke made the following findings:
[41] As set out above, I have concluded that the plaintiff suffered mild to moderate soft tissue injuries to her lower and mid-back and moderate soft tissue injuries to her neck as a result of the 2005 accident, resulting in pain, discomfort, and loss of range of motion, headaches, and loss of sleep. These symptoms were particularly acute for the first several months after the accident, but they improved about 75 percent after six months. She continued, however, to experience some pain and discomfort over the next two years. By the time of the subsequent accident in October 2008, she was substantially recovered and did not have any continuing limitations on her ability to work…

[45] One important factor in the present case is that the plaintiff’s injuries came at a particularly unfortunate time for her, when she was trying to care for her infant son. This was her first child. He was only four months old at the time of the accident. As a result of her injuries, she could not enjoy a carefree experience of playing with him. She could not lift him without someone else’s assistance. She had to have someone hand the child to her when he needed feeding. Because she was breast feeding, she was reluctant to take painkillers to relieve her pain. It is a cliché, but true, that children are young only once. The plaintiff feels that as a result of the accident she lost out on experiencing the full joy of raising her son when he was an infant. That is a loss that she can never recover. This was a great disappointment to her.

[46] The evidence in this case also establishes that the accident put considerable stress on the plaintiff’s relationship with her fiancée. He was working long hours at his new business, and when he came home, he had to take on housekeeping chores that would normally have been shared. He described how, as a result of the accident, the plaintiff was no longer the active person she had been, and how much of the fun went out of their relationship.

[47] Particularly important in this case is the fact that the plaintiff had been an accomplished soccer player prior to the accident. This was clearly a very important part of her life. She had been playing since she was a young child. She played on three different leagues at a very high level. She had travelled to foreign countries with her team. To a large extent, her social life revolved around her athletic activities. It was an important factor in initially bringing the plaintiff and her fiancée together. After the accident, she found she could not play soccer. She tried for a month or so in 2006, but had to stop…

[50] On the evidence, I am satisfied that the plaintiff tried to resume playing soccer in 2006 and perhaps again in 2007 and that she stopped playing because she felt the pain from her injuries prevented her from playing at the level she had previously been accustomed to. I am satisfied that this is a factor that should properly be taken into account in assessing non-pecuniary damages…

[53] In my view, the severity of the injuries, the length of their persistence, and the effect which they had on the plaintiff’s life in the present case are more serious than in the cases cited by the defendant, and somewhat less serious than the cases cited by the plaintiff. At the end of the day, every case is unique and must be determined on the basis of its own facts.

[54] I am satisfied that in the circumstances of the present case the proper assessment of non-pecuniary damages is $40,000.

Functional Assessment Biomechanical System (FAB) Deemed Inadmissible in Injury Claim

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

Reasons for judgement were released today by the BC Supreme Court considering the admissibility of the “Functional Assessment Biomechanical System” (known as FAB for short) in a personal injury claim.
In today’s case (Forstved v. Penner) the Plaintiff was suing as a result of personal injuries.  In presenting her case she hired an occupational therapist to write a report summarizing her physical limitations and giving an estimate of her future care needs.  In preparing this report the occupational therapist used the FAB system.
Mr. Justice summarize the FAB System as follows:

[5] The development of the FAB started in 2004 and Mr. McNeil has been using the FAB results since 2006 or 2007 in the preparation and formulation of his opinions.

[6] The FAB in short is comprised of hardware, the most critical part being some 13 wireless inertial sensors that are attached to a subject or patient’s body while they undertake various physical tasks; and software, that translates the signals from the sensors into measurements of the movements of the body on a real-time basis. Embedded in the software are functions such as the analysis of the data as requested by the operator as the test subject is conducting the instructed activities. It also includes a timer function, graphing and other report templates.

[7] Mr. McNeil is present while the subject performs the tests and says that he observes the actions of the subject. He also states that the FAB is not a diagnostic tool but rather augments his findings. He says he applies standardized tests which are set out in his report and that the FAB system provides additional measures that would otherwise only be guessed at by an evaluator.

The Defence lawyer argued that the expert report should not be admitted into evidence because the FAB System was “novel as a science or technique“.  Mr. Justice Masuhara agreed that the report was not admissible as the FAB System does not meet the judicially required “threshold level of reliability“.

Specifically Mr. Justice Masuhara held as follows:

[12] As I have mentioned, the report itself reflects the measurements from the FAB. The report is lengthy, being 82 pages, again which I say is largely comprised of the information derived from the FAB.

[13] The report says that there are checks and balances within the tests when cross correlating and with cross correlating tests in order to establish the level of effort put forth by the individual. As I have said, he states that it is not a test protocol and that standard tests are used throughout the assessment and that motion capture system augments the evaluator’s observation and allows for accurate measurement, mobility and measurements of biomechanical forces that could otherwise not be performed by the evaluator and that tests are performed to identified the reliability of the individual’s pain reports including distraction tests and Waddell signs.

[14] On the other hand, the defence in following the factors in R. v. J.?L.J. points to the following.

[15] That the technique which includes both the hardware and the software has not been tested except by Biosign or someone under its direction. Mr. McNeil’s own words stated that the testing was still in the “beta phase” which I took to mean that it was not yet ready commercially. The software itself is proprietary and Mr. McNeil being an occupational therapist is not able to speak to the coding as he did not develop it, nor could he speak to the hardware but relied upon his own team of engineers who have developed these things. From that perspective there are some difficulties with respect to the ability to test and to query the software and the hardware embedded and integrated within the FAB.

[16] That the technique while Mr. McNeil indicated was under some form of peer review, nothing has been published and Mr. McNeil was not able to indicate when such a review or the results of such a review would be produced. He also agreed that the motion capture technique is a relatively new technique. Though I note that he stated it was not “cutting edge”.

[17] There are no published standards for the techniques nor is there any rate of error known though Mr. McNeil did say that the device had met CSA, Health Canada, FDA and FCC standards. However, on cross-examination it was revealed that these standards largely deal with safety issues with respect to the device being used upon a subject and could not be taken to speak to the accuracy or reliability of the FAB.

[18] In regard to the technique being generally accepted, Mr. McNeil is the only occupational therapist in British Columbia using the motion capture software. There is no consensus on any technology being the best for the type of work that is the subject of this ruling. No one has yet purchased his technology and the vast majority of occupational therapists do not use motion capture techniques.

[19] Complicating the entirety of the circumstances is the fact that Mr. McNeil is the inventor and a marketer of the FAB. He has a financial interest in the acceptance and success of the FAB. Mr. McNeil’s testimony revealed a lack of appreciation regarding the role of a court expert and the need for open and candid disclosure of a financial interest in the very tools that he refers to in validating or verifying the reliability of the information supporting his opinions. His view that such information was irrelevant was troubling. This problem with respect to his non-disclosure was also referred to by Madam Justice Allan recently in the Rizzolo v. Brett, 2009 BCSC 732 at para. 105. I wish to add that Mr. Mussio was not aware of these issues and that Mr. Chan for the defence only came upon Mr. McNeil’s testimony before Allan J. on the weekend before this trial started.

[20] In the circumstances, I am of the view that the results from the FAB do not meet the threshold level of reliability. As the subject report is comprised to a large degree with the data from the FAB, which creates an unwarranted perception of precision, and which is integrated into the recommendations I rule that the report is not admissible in its present form. Having said that, I think it would be in order for the court to receive submissions from Mr. Mussio and of course reply by Mr. Chan as to Mr. McNeil being called to provide evidence and his opinions based on his observations or some other form in which his testimony can be received by the court. That concludes my ruling.

$35,000 Non-Pecuniary Damages for STI's of Over 10 Years Duration

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.

Reasons for judgment were released today by the BC Supreme Court, Cranbrook Registry demonstrating that a lengthy duration of injury does not always merit a significant award of non-pecuniary damages.
In today’s case (Salzmann v. Bohmer) the Plaintiff was injured in a BC Car Crash.  The collision took place over 10 years before trial.  While the time-frame from the accident to trial was unusually long, such delays are not unheard of when Infant Plaintiffs are involved in motor vehicle collisions.  One reason for this is that in British Columbia  limitation periods typically do not start running for infants in tort claims until their 19th birthday.  Another reason is that doctors are more reluctant to give a prognosis with respect to injuries suffered in infants as opposed to adults.  In any event, this case involved injuries of over 10 years duration by the time of trial.
Despite the duration of the Plaintiff’s Injuries, Mr. Justice Melnick found that they were not particularly severe or debilitating. He also found that she failed to take reasonable steps to reduce her symptoms and that with appropriate exercises there was room for considerable improvement.  In assessing the Plaintiff’s non pecuniary damages at $35,000 Mr. Justice Melnick held as follows:

[18] Medical reports are often as interesting for how they are worded as for what opinions they express. In the case of the report of Dr. Apel, she indicated that she has examined Ms. Salzmann at the request of Ms. Salzmann’s counsel. Then, while responding to a specific question put to her by that same counsel (whether Ms. Salzmann’s symptoms will abate eventually) she carefully replied that “…it is unlikely those symptoms spontaneously will abate eventually” (emphasis added).

[19] The use of the word “spontaneously” coupled with her pointed remarks that Ms. Salzmann’s lack of conditioning and need for an exercise therapist or kinesiologist suggests to me that Ms. Salzmann’s symptoms likely will abate provided she becomes committed to an appropriate program of exercise (as opposed to passive treatments such as massage). Ms. Salzmann must take a significant role in her own recovery, something she has not done in the past (perhaps due to her being so young, perhaps due to not having been given adequate instruction or having been provided with the required sense of self-discipline). For this reason she bears some, but far from all, of the responsibility for her continued pain given that she was injured when only ten years of age.

[20] I have no doubt that Ms. Salzmann suffered musculoligamentous strain to her cervical spine as a result of the accident and that, in 2003, she still experienced residual tightness in her trapezius and pectoral muscles. I also accept that in 2008 she demonstrated a chronic regional myofascial pain syndrome as described by Dr. Apel. Whether, by that time, she could have avoided such a sequela to the injury she incurred in the accident is a good question.  Things may have been different if she had followed an appropriate and properly directed regime of exercise after the accident. The reality is that she did not, and the symptoms she displayed apparently were not sufficiently alarming to anyone to insist that she do so, and she was not a complainer. With a few exceptions, Ms. Salzmann’s life carried on much as normal, as best as could be observed in a child who was in the process of development, growing and maturing.

[21] Today, she still suffers from the injury she received in the accident. But the message from her own doctor is loud and clear: she can do something about it.

[22] I have no evidence upon which I can estimate the cost of an exercise therapist or kinesiologist. Dr. Apel gave no indication of the length of time Ms. Salzmann should be supervised. However, the non-pecuniary damages I will award her will recognize that her road to the eventual abatement of her symptoms will probably require her to not just be self-motivated, but have the assistance of a professional for advice for a period of time to set her on the right track. That said, I note that no defendant should be required to pay for anyone’s lack of interest in pursuing his or her own recovery. Ultimately we all bear a responsibility to do what we can to attain and maintain good health. In the legal realm, this constitutes mitigation, and a plaintiff bears a legal duty to mitigate.

[23] With all of the above in mind, I assess Ms. Salzmann’s non-pecuniary damages at $35,000. I agree with Ms. Salzmann’s counsel that the decision of Madam Justice Humphreys in Sinnott v. Boggs, 2006 BCSC 768, is the most relevant authority provided to me with respect to non-pecuniary damages. Those provided by counsel for the defendant deal largely with milder forms of injury with less chronic consequences.

[24] From the amount of $35,000 I deduct 20% for Ms. Salzmann’s failure to mitigate by not pursuing the appropriate conditioning and exercise programs despite the fact that they were laid out for her as early as 2000. Thus, the net award of non-pecuniary damages is $28,000.

Even More on Costs and "Sufficient Reason" to Sue in the BC Supreme Court

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

Further to my previous posts on this topic, reasons for judgement were released today considering whether to award a Plaintiff Supreme Court Costs in an ICBC Claim where the judgement amount was within the Small Claims Court’s jurisdiction.
In today’s case (Mohamadi v. Tremblay) the Plaintiff was awarded $10,490 in his ICBC Claim after trial (click here to read my summary of the trial judgment).
The Plaintiff brought an application to be awarded ‘costs’ under Rule 57(10) which reads as follows:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
ICBC opposed this application.  Mr. Justice Truscott set out the leading test in applying Rule 57(10) from the BC Court of Appeal (Reimann v. Aziz) where the BC high court held that “Considering Rule 57(10) in its legislative context and applying its words in their grammatical and ordinary sense harmoniously with the scheme of the legislation and its objects, I conclude that a plaintiff does not have an ongoing obligation to assess the quantum of a claim and that the point in time for a consideration of whether a plaintiff had sufficient reason for bringing a proceeding in the Supreme Court is the time of the initiation of the action.”
Mr. Justice Truscott held that this Plaintiff did not have “sufficient reason for bringing” his lawsuit in the Supreme Court.  He summarized the key reasons behind his conclusion as follows:

[58] I recognize that most plaintiffs with personal injury claims probably feel more comfortable with counsel representing them and more confident that they will obtain a greater amount of damages for their claim with the assistance of counsel than by acting on their own in Small Claims Court.

[59] However, the onus to prove that at the beginning of the claim there is sufficient reason for bringing the proceeding in Supreme Court, as Rule 57(10) states, lies in practice to some great extent on plaintiff’s counsel who is advising the plaintiff on the value of his claim and commencing the action.

[60] Here, I am satisfied that if Dr. Fox’s medical records pre-accident had been obtained and if his opinions and the opinions of Dr. Cameron had been obtained before the writ of summons was issued, with the plaintiff’s credibility at issue with respect to the injuries he was alleging that were not supported by his doctors, with his false statement to ICBC, and with the contrary evidence of his employer, it could and should easily have been determined that the action should be commenced in Small Claims Court and not this Court.

In my continued exercise to get used to the New BC Supreme Court Civil Rules, I am cross referencing all civil procedure cases I write about with the new rules.   The Current Rule 57(10) will become Rule 14-1(10) and it reads identically to the current rule so the precedents developed under Rule 57(10) regarding costs should continue to assist litigants after July 1, 2010.

More on the Scope of Examination For Discovery Evidence At Trial

Written by admin on . Posted in Civil Procedure, Uncategorized. 57 Comments on More on the Scope of Examination For Discovery Evidence At Trial

When a Defendant is examined for discovery in a BC Injury Claim damaging answers can be read in at trial as evidence against that defendant. A limit to this, however, is that if there is more than one defendant in a lawsuit the evidence can generally only be used against the defendant who was examined (click here to read a previous post discussing this restriction).
Reasons for judgment were released today demonstrating an exception to this restriction.  In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured in a 1994 motor vehicle collision.   The Plaintiff claimed that the design of the vehicle involved was defective and sued various parties including GMC.
In the course of the lawsuit representatives of GMC were examined for discovery.  The Plaintiff obtained admissions which were useful in advancing their lawsuit.  Subsequent to this, GMC sought bankruptcy protection under Chapter 11 of the US Bankruptcy Code.  Because of the Bankruptcy the plaintiff’s could no longer compel the GMC representatives as adverse witnesses.   The case was set for trial and the Plaintiff wished to read in the discovery answers of these witnesses as against the other defendants.  The other defendants opposed this raising the limitation set out in Rule 40(27) of the BC Supreme Court Rules.
Mr. Justice Goepel agreed that the restriction in Rule 40(27) “does not allow exceptions and, accordingly, the discovery evidence would not be admissible pursuant to Rule 40(27) as against anyone other than GMC“.
However, the Court went on to hold that, despite this restriction, the Court could permit this evidence in as against the other defendants under Rule 40(4) of the rules of Court due to the circumstances of this case.    Below I set out Mr. Justice Goepel’s useful analysis:

[27] Rule 40(4) deals with the evidence of witnesses who are otherwise unavailable.  Rule 40(4) gives the court the discretion in certain defined circumstances to allow a transcript of prior evidence given by the witness to be put in evidence.  The Rule reads:

40(4)  Where a witness is dead, or is unable to attend and testify because of age, infirmity, sickness or imprisonment or is out of the jurisdiction or his or her attendance cannot be secured by subpoena, the court may permit a transcript of any evidence of that witness taken in any proceeding, hearing or inquiry at which the evidence was taken under oath, whether or not involving the same parties to be put in as evidence, but reasonable notice shall be given of the intention to give that evidence.

[28] Mr. Leffert and Mr. Uthe are both residents of the United States.  They are not subject to this Court’s subpoena powers and the plaintiffs cannot compel their evidence at trial.

[29] The Rule is discretionary in nature.  If the witness cannot attend for one of the stated reasons the court may, not must, allow a transcript of prior testimony to be put into evidence, subject only to the requirement of prior notice.  In determining whether or not to allow the evidence to be admitted, the court must consider matters of trial fairness and potential prejudice to the parties.

[30] Rule 40(4) has been the subject of several recent decisions.  Most have concerned applications to introduce a deceased plaintiff’s examination for discovery transcript.  The authorities were reviewed and considered in Malik Estate v. State Petroleum Corp., 2007 BCSC 934, 74 B.C.L.R. (4th) 330.  In Malik, the plaintiff sought to admit into evidence the transcript of the examination for discovery of Mr. Malik that had been conducted by the defendant.  Mr. Malik had since died. After reviewing previous decisions dealing with Rule 40(4) and considering at some length the restated rules concerning the admission of hearsay evidence, Burnyeat J. concluded that the transcript of Mr. Malik’s discovery was admissible.

[31] The arguments in favour of admissibility are much stronger in this case than in Malik.  In Malik, the plaintiff was seeking the admission of discoveries conducted by the defendant.  Such discoveries often present an incomplete version of the case as an examiner may choose to refrain from examining on some aspect of the case in order to avoid revealing trial tactics.  The potential for prejudice in such cases is great, particularly when the witness is deceased and the transcript is the only evidence of that witness that will be before the court.

[32] That is not the situation in the case at bar.  Here the examination was conducted by the plaintiffs.  It was conducted with the intent that the evidence would be read in at trial.  Absent the bankruptcy, Leffert and Uthe could have been called as adverse witnesses and their evidence would have been admissible against all defendants.

[33] There is minimal prejudice to the remaining defendants if the evidence is admitted.  Mr. Leffert and Mr. Uthe are clearly allied with the GM defendants.  There is no reason to believe that they would not voluntarily attend at the trial if the GM defendants requested their attendance.  If the evidence is admitted the remaining GM defendants can call Mr. Leffert or Mr. Uthe to explain any admissions that they may have made.

[34] It may well be pursuant to the Letters of Request that the plaintiffs could again obtain the evidence of Mr. Leffert and Mr. Uthe and then lead that evidence at trial.  Rule 1(5) seeks to secure the just, speedy and inexpensive determination of every proceeding on its merits.  To put the plaintiffs to the cost and expense of again examining these witnesses would be contrary to and the antithesis of Rule 1(5).

[35] Rule 40(4) refers to transcripts of other evidence.  The plaintiffs in this case wish only to put into evidence those parts of the transcripts which assist their case.  While admission of only a portion of the evidence may be objectionable in other circumstances, such as when the witness is deceased, I will allow the plaintiffs in this case to submit only portions of the transcript, subject to the defendants’ right to request that other parts of the discovery that are reasonably connected to those portions already introduced be also put into evidence:Foote v. Royal Columbian Hospital, (1982) 38 B.C.L.R. 222 (S.C.).

[36] Accordingly, the plaintiffs can read into evidence, pursuant to Rule 40(4), portions of the examinations of Mr. Leffert and Mr. Uthe.  That evidence will become evidence at large and will be admissible for and against all parties. The plaintiffs must 14 days prior to trial specify the part of the discovery evidence that they intend to be given at trial.  The remaining GM defendants will have the right to request that other parts of the discovery that are reasonably connected to those parts given in evidence also be put into evidence.

Now to continue my effort to cross reference civil procedure cases that I write about with the soon to be in force New BC Supreme Court Civil Rules.

Rule 40(27) will be replaced with the new Civil Rule 12-5(46).  With respect to the restriction of who the discovery evidence can be used against, the new rule seems to be in line with the current rule.

Rule 40(4) is replaced with Rule 12-5(54) with identical language.  Accordingly, this case should retain its value as a precedent once the new BC Supreme Court Civil Rules come into force.