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BC Personal Injury Law Round Up

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Liability (fault) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on BC Personal Injury Law Round Up

The volume of ICBC and other personal injury cases released by our Superior Courts over the past 2 days has been higher than usual so I present today’s BC Injury Law Update in a ‘round up‘ fashion.
The first case of note was from the BC Court of Appeal and dealt with limitations under the Local Government Act.  When suing a local government for damages a Plaintiff must comply with s. 286 of the Local Government Act which holds in part that a Plaintiff must give “notice in writing…within 2 months from the date on which the damage was sustained“.  Failure to comply with this section can be a bar to suing.  An exception to this limitation period, however, is contained in s. 286(3) which holds that:

(3)        Failure to give the notice or its insufficiency is not a bar to the maintenance of an action if the court before whom it is tried, or, in case of appeal, the Court of Appeal, believes

(a)        there was a reasonable excuse, and

(b)        the defendant has not been prejudiced in its defence by the failure or insufficiency.

Today the BC Court of Appeal dealt with the issue of what is a ‘reasonable excuse’.

In today’s case, Thauili v. Delta, the Plaintiff sued for injuries sustained while in a fitness class in a community center operated by Delta.  The Plaintiff did not give notice within the 2 months set out in s. 286 of the Local Government Act.  Delta brought a motion to dismiss the Plaintiff’s claim but this motion was dismissed.  Delta appealed to the BC Court of Appeal.  This too was dismissed and in so doing the BC Court of Appeal added clarity to the issues that can be considered when addressing a ‘reasobable excuse’ for not giving notice within the required 2 month period.  The highlights of this discussion were as follows:

[10] In Teller, a five-judge division of this Court considered the construction to be placed on the words “reasonable excuse”, taken in the context of s. 755 of the Municipal Act, R.S.B.C. 1979, c. 290.  Section 755 contained the same notice requirement found in s. 286(1) of the Local Government Act as well as the same saving provision now found in s. 286(3).  Although not identically worded, there is no difference in substance between s. 755 of the Municipal Act and s. 286 of the Local Government Act.

[11] Teller did not propound a test to determine what constitutes “reasonable excuse”.  Rather, Teller instructs that “all matters put forward as constituting either singly or together a reasonable excuse must be considered.” (at 388)  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

[12] Teller expressly overruled those trial decisions which had excluded ignorance of the law as a factor to be considered in deciding whether there was reasonable excuse for the failure to give notice. …

[37] There can be no doubt that after its pronouncement, Teller became – and has remained – the governing authority on the construction of “reasonable excuse” found in the saving provision in s. 755 of the Municipal Act. …

[42] As to the purpose of the section, Southin J.A. said, at 383:

What then is the purpose of the section?  Clearly one of the purposes of the section is to enable a municipality to investigate a claim fully.  But that purpose is addressed by the second branch of the concluding sentence.  The only other purpose I can think of was to protect municipalities against stale claims in order to enable them to estimate their future liabilities and make budgetary provision for them.  But I know of no authority for that surmise. It really is difficult to make much sense out of the words “reasonable excuse” in the context….

43]         After considering the provenance of the section, the state of the law as revealed by the case authorities in 1957 when the provision was, in effect, newly enacted, and the case authorities, including Horie v. Nelson (1988), 20 B.C.L.R. (2d) 1, [1988] 2 W.W.R. 79 (C.A.), leave to appeal to S.C.C. refused 27 B.C.L.R. (2d) xxxv [Horie], Southin J.A. concluded, at 388:

[T]he maxim “ignorance of the law is no excuse” is not a rule of law determinative of an issue of statutory interpretation in every instance.

In the end, the question is simply what do the words at issue mean in the context.  In my opinion, ignorance of the law is a factor to be taken into account.  So for that matter is knowledge of the law. But all matters put forward as constituting either singly or together a reasonable excuse must be considered.

Those decisions of the court below which exclude ignorance of the law as a factor are, therefore, overruled.

[50] The decision in Teller does not propound a test or establish criteria which must be met before the court may find a reasonable excuse for the failure to give notice; instead, the decision invites a determination informed by the purpose or intent of the notice provision, taking into account all matters put forward as constituting either singly or together a reasonable excuse.  The determination of whether there is reasonable excuse is contextual.  The question is whether it is reasonable that the plaintiff be excused, having regard to all the circumstances.

Ultimately the Court held that ignorance of the law can be a reasonable excuse in certain circumstances under the Local Government Act.

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The second case released today dealt with Pain and Suffering Awards for Soft Tissue Injuries.  In this case (Robinson v. Anderson) the Plaintiff was injured in a 2005 rear end car crash in Tsawwassen, BC.  Liability was admitted leaving the court to deal with the value of the injuries.

Mr. Justice Bernard awarded the Plaintiff $25,000 for her non-pecuniary damages (pain and suffering and loss of enjoyment of life).  In so doing he summarized the Plaintiff’s injuries and their effect on her life as follows:

[18] It is not disputed that the plaintiff sustained soft-tissue injuries to her neck, back, left shoulder and right knee in the collision. Similarly, there is no suggestion that the plaintiff is a dishonest witness who is prevaricating or exaggerating in relation to her pain and the various consequences it has wrought upon her life….

[22] Causation is established where the plaintiff proves that the defendant caused or contributed to the injury: see Athey v. Leonati, [1996] 3 S.C.R. 458, 140 D.L.R. (4th) 235. In regard to the instant case, I am satisfied that the plaintiff has proved that the defendant caused or contributed to the injury which has manifested itself in ongoing symptoms of pain. The evidence establishes consistency and continuity in the plaintiff’s symptoms (albeit with some amelioration) and an absence of any intervening cause which might otherwise account for the plaintiff’s current pain. A dearth of objective medical findings is not determinative; this is particularly so for soft tissue injuries.

[23] Notwithstanding the aforementioned causal link, the evidence strongly supports finding that: (a) the plaintiff’s injuries are not permanent; (b) if the plaintiff takes reasonable steps to improve her fitness level, then significant, if not full, recovery is very likely; and (c) if the plaintiff does take those reasonable steps, then recovery is attainable within a relatively short time frame. In this regard, the medical opinions of both Dr. Hodgson and Dr. Werry (on May 6, 2009 and April 9, 2009 respectively) suggest that the plaintiff’s present symptoms would decrease substantially through a reduction of her “habitus” (body size and shape), increased physical activity, and working through that which is sometimes described as “the pain of reactivation”.

[24] There are similarities between the plaintiff in the instant case and the plaintiff in Nair v. Mani, [1991] B.C.J. No. 2830. Ms Nair was 49 years of age, overweight, and physically unfit at the time she was injured in a motor vehicle collision. She complained of ongoing back, thigh and knee pain. The plaintiff was not a malingerer, but the court found that she could have accelerated her improvement and lessened the impact of her injuries through exercise and weight loss. In relation to the plaintiff’s fitness the court said:

A defendant must take her victim as she finds her, be it with a thin skull or an out of shape musculature. But when it comes to the reasonable efforts expected of a plaintiff to aid her own recovery after the accident, then those reasonable steps include exercise and muscle toning so that an injury may be shaken off more quickly.

[25] The plaintiff’s weight is not relevant to causation; however, it is germane to the plaintiff’s duty to mitigate her losses. It is trite law that a plaintiff has an ongoing duty to mitigate his or her damages. In the case at bar, as in Nair v. Mani, the plaintiff’s duty to mitigate includes taking reasonable steps to reduce her body habitus and increase her fitness level…

[28] Assessment of just and fair compensation for non-pecuniary losses by reference to other cases is a daunting task. Each case is unique in its plaintiff and set of circumstances; nonetheless, I accept that the cases cited by the parties assist in defining reasonable upper and lower limits for a non-pecuniary damages award in the case at bar. The most salient factors of the case at bar are: (a) the absence of proof of a permanent or long-term injury; (b) the existence of some amelioration of symptoms; and (c) the absence of enduring and incessant debilitating pain. In relation to (c), I accept that the plaintiff has suffered from pain since the accident and that it has had an adverse effect upon many aspects of her life; I simply note that the intensity of the pain has not been to the degree suffered by many other plaintiffs.

[29] Having due regard to all the foregoing and the cases cited by counsel, I find that a fair and just award for the plaintiff’s non-pecuniary losses is $25,000.

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In the third case released today the Court was asked to deal with the issue of fault when the occupant of a parked car opens his door and is struck by a cyclist.

In today’s case (Hagreen v. Su) the Defendant was parked and opened his car door.  As he did so the Plaintiff, who was travelling on his bicycle, drove into the open door and was injured.  The Defendant was found 100% at fault for the Plaintiff’s injuries and in so finding Mr. Justice Brooke summarized and applied the law as follows:

] On the day of the accident, Mr. Hagreen was wearing a helmet as well as reflective stripes on his jacket and boots and was proceeding eastward. Cars were parked on his right side in the 2400 block of East Broadway, and as a matter of course, the plaintiff said that while monitoring the vehicle traffic in the two lanes to his left, he also monitored the driver’s side of the parked cars, in order to alert himself to any potential risk. Mr. Hagreen estimated his speed at 25 to 30 km/hr when he said, without any warning, the driver’s door of Mr. Su’s vehicle opened; that he, Mr. Hagreen, yelled, “Whoa,” but immediately hit the door. He described his upper body hitting the door, and he injured his ankle as well when he hit the ground. Emergency services were called, the first responder being a fire truck before the ambulance arrived, and Mr. Hagreen was transported to hospital. He indicated that he believes that he passed out in hospital, but after being seen by a physician, he was told that he could go home. Mr. Hagreen said that when he tried to put his shirt on, he could not lift his left arm above his head, and this resulted in x-rays being taken of his left arm region. Mr. Hagreen saw his family doctor, Dr. Montgomery, who prescribed Tylenol and Codeine to treat the pain throughout the plaintiff’s upper body, principally in the area of the right collar bone. As a result of continuing complaints of pain in the left collar bone, the plaintiff was referred for physiotherapy which provided some relief for what he was told were soft tissue injuries. Mr Hagreen was off work for seven days, and on his return, he avoided heavy lifting and stretching which resulted in other employees having to do that work.

[4] The defendant, Mr. Su, said that on the day of the accident, it was raining and his child was ill, so he had moved the car to the front of the house to take the child to the doctor. He said that he checked what was behind him, and he saw a cyclist about six or seven houses back, and he felt that he had enough time to get out. He said that he put one leg out and turned his body when the bicycle crashed into the door. In cross-examination, Mr. Su acknowledged giving a statement shortly after the accident, and in that statement, he said that he opened the car door slightly and made shoulder check, then he opened the door further and moved both of his legs out, when he saw the bike approaching “really fast” and the resulting collision occurred. Mr. Su had earlier indicated that he had passed the test in English for a second language, although most of his customers speak Chinese rather than English. Mr. Su was asked in cross-examination whether it was true that he did not see the bicycle until the door was opened and that it was then too late, and he acknowledged that that was true but indicated that it was some few years past. It was put to Mr. Su that he did not see the bicycle until it was too late, to which he said yes, and it was put to him that that was the truth, to which he also said yes.

[5] I am satisfied that the defendant is solely responsible for the collision, having opened his door when it was unsafe to do so. Section 203(1) of the Motor Vehicle Act, R.S.B.C. 1996, c. 318, says:

(1) A person must not open the door of a motor vehicle on the side available to moving traffic unless and until it is reasonably safe to do so.

[6] I find that the defendant, Mr. Su, is wholly responsible for the collision and that the plaintiff took all reasonable steps available to him to avoid the collision, but that the door was not opened by Mr. Su until the plaintiff was so close that he had no opportunity to brake or to take evasive action. I now turn to the question of damages.

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The last ICBC related case released today dealt with the issue of costs.  In this case (Mariano v. Campbell) the Plaintiff sued for injuries as a result of a car crash.  The claim was prosecuted under Rule 66 and the trial took 4 days (which exceeds the 2 days allowed under Rule 66).

When a Plaintiff sues and succeeds in a Rule 66 lawsuit their ‘costs’ are capped at $6,600 “unless the court orders otherwise” as set out in Rule 66(29).

In today’s case the Plaintiff was awarded a total of just over $115,000 after trial.  She brought an application to be permitted an additional $3,200 in costs.  Madam Justice Loo allowed this application.  This case is worth reviewing in full to see some of the factors courts consider when addressing additional costs to the successful party in a Rule 66 Lawsuit.

ICBC Injury Claims and Your Driving History

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

When you are involved in a suit for damages in an ICBC injury claim can you access the opposing parties driving history?  Reasons for judgement were recently brought to my attention making just such an order.
In the recent case (Rothenbusch v. Van Boeyen) the Plaintiff claimed damages against the Defendant.  Liability (fault for the car crash) was at issue.  During the examination for discovery the Plaintiff’s lawyer asked the Defendant how many speeding tickets he had.  He could not recall exactly and indicated “one or two“.   The lawyer then asked for him to produce his driving history and he refused.
In the application for production of the Defendant’s driving history Master Caldwell of the BC Supreme Court held that “(the Defendant) was unable to provide an actual firm answer (as to how many speeding tickets he had)…The defence says that the driving pattern is not particularly relevant, unlike defence requests for previous medical records and that type of thing.  She indicates that this is a highly invasive application with respect to the privacy of the Defendant, and that unlike a plaintiff who opens their life up to investigation when they commence an action, the same cannot be said of the defence.  I am not really satisfied that that is necessarily the case, particularly in a situation where liability is at issue as it is here.  I am satisfied based on the questions asked and answered  and the form of the answers contained in the discovery transcript, that this record as sought may be producible.”
Despite ordering production of this record the Court went on to note that the same may not be admissible at trial.  Specifically Master Caldwell held that “Whether or not (the driving record) is relevant and passes the test of admissibility of trial will be up to the trial judge…I will order that the Defendant provide a copy of his driving record for a period of three years prior to the …accident”.

ICBC Part 7 Benefits and the Definition of Vehicle "Occupant"

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits, Uncategorized. 59 Comments on ICBC Part 7 Benefits and the Definition of Vehicle "Occupant"

Reasons for judgment were released today involving a tragic BC Pedestrian/Truck Crash addressing an injured Plaintiff’s entitlement to “no-fault” accident benefits.
In today’s case (Schuk v. York Fire & Casualty Insurance Company) the Plaintiff was outside of the vehicle (which was hauling a trailer) she was riding in for the purpose of putting chains on it.  While doing so she was struck by a tractor-trailer unit and suffered catastrophic injuries.  Her vehicle and the various trailers of the vehicles involved were insured with different companies.  The Plaintiff applied for ‘no-fault‘ accident benefits to all of the insurers and they all refused payment because they could not agree which of them was responsible for paying the benefits.
The obligation for ICBC to pay no-fault benefits turns in part on whether a person is “insured“.  The definition of an “insured” is contained in s. 78 of the Insurance (Vehicle) Regulation and includes “an occupant of a vehicle that is licenced in the Province…” and “a pedestrian who collides with a vehicle described in an owner’s certificate” The determination of which insurer was ultimately responsible to pay the Plaintiff her benefits turned on whether she was an “occupant” of her vehicle at the time of this accident or a “pedestrian“.
Mr. Justice Myers held that the Plaintiff was a “pedestrian” and in so doing made the following observations with respect to the test for being an “occupant“:

[16]    The Regulation defines occupant, but does not define pedestrian.  Occupant is defined in s. 1(1) as follows:

“occupant” means a person operating or riding in a vehicle or camper and includes

(a)        a person entering or alighting from a vehicle or camper, and

(b)        a person, other than a garage service operator or an employee of a garage service operator, who is working, or whose dependant is working, in or on a vehicle or camper owned by that person;

[17]    There are a large number of cases which have addressed this issue in factual situations similar or analogous to the case at bar.  For example, in Kyriazis v. Royal Insurance Co. of Canada (1991), 82 D.L.R. (4th) 691 (Ont. Gen. Div.), affirmed (1993), 107 D.L.R. (4th) 288 (C.A.), the plaintiff pulled his car over to clean the snow off its windshield. Abbey J. held that he was not an occupant.  In doing so, Abbey J. rejected a line of authority – primarily from the United States – which applied what was referred to as a “zone of connection test”.  That test regarded the intent of the injured person as a significant determining factor of whether he or she was an occupant when not inside the vehicle.  Abbey J. focussed on the definition of occupant contained in the insurance policy before him, which was virtually identical to that in the Regulation.  He stated:

The word “occupant” is defined by reference to various physical activities or processes.  An “occupant” is a person who is driving an automobile, being carried in or upon an automobile, entering or getting onto an automobile or alighting from an automobile.  The plain meaning of the words used, it seems to me, suggests an intention to draw the line between an occupant and a non-occupant at the point that an individual, who is not driving, can no longer be said to be either entering or getting on to an automobile or, alternatively, alighting from an automobile…

[22]    However, the definition of “occupant” in the Regulation, and the definition in the policies involved in the other cases I have cited above, do in fact refer to the activity of driving, or getting in or out of a vehicle.  On that basis, I do not see a reason for departing from the approach in Kyriazis and the other cases I have cited above.

[23]    Ms. Schuk was not operating or riding in the vehicle, entering into it, nor alighting from it at the time of the accident.  Although the purpose of pulling over and getting out the vehicle was to put chains on it, the parties are in accord that Ms. Schuk was not actually working on the vehicle at the time of the collision.  Therefore none of the criteria for an occupant contained in the definition are met and she was not an occupant.

[24]    Pedestrian is not defined.  However, that was also so in most of the cases I cited above at para. 18.  The approach taken in those cases is that for the purposes of the scheme of automobile insurance, a victim of a car accident is either an occupant or a pedestrian; in other words if the victim does not fall within the definition of a passenger, then she is an occupant.  That appears to me to be the case with the legislation and regulation in issue in the case at bar.  Accordingly Ms. Schuk was a pedestrian at the time of the accident.

[25]    Ms. Shuk was therefore an insured for the purpose of no-fault benefits under both MPIC and ICBC coverage.

BC Court of Appeal Weighs in on Litigation Privilege

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

Further to my previous posts on Litigation Privilege in British Columbia, reasons for judgement were released today adding further clarity to this area of the law.
In today’s case (Shooting Star Amusements Ltd. v. Prince George Agricultural and Historical Association) the Plaintiff brought an application for the production of certain documents which the Defendant refused to produce on the grounds of Litigation Privilege.   Madam Justice Bruce ordered that the documents be produced.  The Defendant appealed.  In dismissing the appeal the BC Court of Appeal made it clear that when asserting a claim for privilege the party must offer evidence in support of this claim.  Specifically the Court held that:
it is only common sense that where a claim of privilege is contested, a court would normally require something more than counsel’s opinion offered in the course of argument.  As Mr. Cassie argued on behalf of the plaintiff, it has been clear at least since this court decidedHamalainen (Committee of) v. Sippola (1991) 62 B.C.L.R. (2d) 254, 3 C.P.C. (3d) 297 that the party asserting privilege in respect of a document bears the onus of establishing the privilege.
The defendant argued that the order for production would cause irreparable harm because the materials ordered to be disclosed would provide details of settlement discussions and legal advice.  The Court noted that such evidence was not before the trial judge.  Interestingly, the court stated that just because a claim for litigation privilege fails in a document production application the party is free to raise the claim again at trial and the trial judge will need to consider whether the documents can stay out of evidence for grounds privilege.  Specifically Madam Justice Newbury stated
I note that although the defendant was ordered to disclose the minutes, unredacted, to the plaintiff, this does not mean they, or the information they contain, will be admissible at trial.  A claim of privilege can still be asserted by the defendants if and when the plaintiff seeks to introduce the minutes into evidence and it will be for the trial judge to determine whether any kind of privilege does indeed attach.

Driving While Using Hand Held Cell Phone Soon to be Prohibited

Written by admin on . Posted in Uncategorized. 66 Comments on Driving While Using Hand Held Cell Phone Soon to be Prohibited

Driving while using a cell phone increases the chances of an accident.  In fact, a recent study has shown that distracted drivers can be more likely than impaired drivers to cause an accident.
With statistics like these in mind the BC Government has introduced amendments to the Motor Vehicle Act which come into force in January, 2010 making it unlawful to text/e-mail while driving and also making it unlawful for drivers to use a hand-held cell phone while driving.
These new laws are changes for the better and hopefully will reduce the number of accidents on our roads.  The BC Government’s press release introducing this law came out today and states as follows:
VICTORIA – B.C. roads will be safer following legislative changes to prevent the use of hand- held cellphones, portable electronic devices and text messaging while driving, Solicitor General Kash Heed announced today.

“We’re taking action today because British Columbians have made it clear they support stronger restrictions on cellphones and other devices that take a driver’s hands off the wheel and their eyes from the road,” said Heed. “Simply put, you cannot talk, type or dial on any hand-held device while driving.”

Changes to the Motor Vehicle Act (MVA) upon legislative approval are to take effect on Jan. 1, 2010. At that point, only hands-free cellphones and devices that require one touch to activate will be permitted. Drivers in the Graduated Licensing Program (GLP) will not be permitted to use hands-free phones in addition to other prohibited activity.

A new fine in the amount of $167 will begin to be levied on Feb. 1, 2010. If drivers are caught texting or emailing they will receive an additional three penalty points. Further, drivers in the GLP will receive the $167 fine and three penalty points for any violation of this legislation.

“As physicians, we often see the consequences of those injured in a car crash because a distracted driver was using a cellphone,” said Dr. Brian Brodie, president of the BC Medical Association. “This is preventative legislation that focuses on being responsible with new technology in a way that doesn’t put people’s lives at risk.”

Clayton Pecknold, vice-president of the B.C. Association of Chiefs of Police said, “Police have been looking forward to these changes because it gives us another enforcement tool to create safer roads in this province.”

According to independent research and studies, cellphone use while driving is the number-one cause of distracted driving. On average, about 117 people die each year in B.C. and 1,400 are sent to hospital because someone was not paying attention behind the wheel.

In the coming months, government will launch an awareness campaign to educate drivers on the new law and the importance of paying attention to the road, pedestrians and other cars around them.

The Use of Clinical Records in ICBC Injury Trials

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

ICBC Injury Claims can be record intensive.  Every time you see your doctor, chiropractor, massage therapist, or other medical specialist they keep clinical records.  These records often take down your subjective complaints, the physician’s objective observations, the physician’s assessment of the problem and the plan or treatment prescribed.   These records, if addressing accident related injuries, are relevant and usually are produced to the Plaintiff and Defence lawyer in the course of litigation.
So what use can be made of these records at trial?  Can a Plaintiff corroborate in court testimony with these previously recorded out of court statements?  Reasons for judgement were released today thoroughly canvassing this area of the law.
In today’s case (Smith v. Wirachowsky) the Plaintiff was involved in a 2007 car crash in Nanaimo, BC.  It was a rear-end crash and the Plaintiff suffered various “mild to moderate” soft tissue injuries which were largely but not entirely resolved by the time of trial.  It was expected that the injuries would eventually resolve and damages of $35,978.66 were awarded which included an award of $30,000 for non-pecuniary loss (pain and suffering).
During the course of the trial the Plaintiff attempted to introduce clinical records from the Plaintiff’s physiotherapist which recorded the Plaintiff’s complaints of pain.  Mr. Justice Halfyard ruled that the records were not admissible for that purpose and summarized the law relating to the use of clinical records at trial as follows:
[14] It was common ground that the clinical records qualified as “business records” within s. 42 of the Evidence Act.  It was also agreed that the plaintiff’s statements in the clinical records, if admitted, could not be used to prove the truth of their contents or to bolster the credibility of the plaintiff’s trial testimony. …

[22] In my opinion, the authorities and the rules of evidence establish that the fact that a plaintiff made a particular statement to a doctor or therapist can be relevant to the following issues (where such issues exist):

a) In cross examination of the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or a damaging admission);

b) In re-examination of the plaintiff, to rebut the suggestion (by defence counsel) of recent fabrication or failure to complain;

c) In cross examination of a doctor who examined or treated the plaintiff, to prove that the plaintiff made a previous statement (which is alleged to constitute a previous inconsistent statement or damaging admission), where the plaintiff denied or did not admit making the statement;

d) Where a doctor’s or therapist’s particular recommendation for the plaintiff’s treatment is challenged, and the plaintiff’s statement is relevant to explain why that treatment was prescribed or administered; and

e) In cross examination of a medical expert witness called by either party, where it is alleged that the expert relied on a particular statement made by the plaintiff to him or her; or where it is alleged that the expert disregarded or failed to consider a particular statement made by the plaintiff.

[23] It should be noted that there are at least two ways in which a plaintiff’s statements recorded in clinical records may become admissible as proof of their truth.  The first way is where the plaintiff admits making a particular statement to a doctor or therapist which appears to be inconsistent with the plaintiff’s trial testimony, but then adopts the previous statement as being true (and rejects the conflicting trial testimony).  In that situation, the previous statement can be used as proof of its truth, if the trier of fact accepts the plaintiff’s testimony on this point.  More frequently, the plaintiff will reject the previous statement as being false and give an explanation for making it (such as mistake).  In that case, as is well known, the previous statement, if inconsistent, can only be used to assess the credibility of the plaintiff’s trial testimony.

[24] The second way is where the plaintiff admits making (or is shown to have made) a previous statement recorded in the clinical records which if true, would constitute an admission against interest.  In that situation, the plaintiff’s previous statement can be used by the trier of fact as proof of its truth (even if the plaintiff denies that his or her previous admission was true).

[25] Conclusion

[26] In the present case, the statements of the plaintiff to her physicians and therapists were not relevant to any issue in the trial that could have made them admissible at the instance of the plaintiff.  A potential exception could occur in a case where a plaintiff had told her doctor that she had recovered from an injury, but on a subsequent date or dates attended a doctor again and complained that an injury continued to generate symptoms of pain and disability.  In that situation, the plaintiff’s subsequent complaints to her doctor would be admissible in re-examination, to rebut the suggestion that the plaintiff had made no further complaints of pain after a certain point in time.  But of course the complaints made subsequently by the plaintiff could not be admitted to prove their truth.  It was not shown that this situation occurred here.

Double Costs Awarded After Jury Dismisses ICBC Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure, Jury Trials, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Defendant double costs following a Jury dismissing a Plaintiff’s ICBC Injury Claim.
This is one of the first cases that I am aware of under Rule 37B where a defendant was awarded double costs.
In today’s case (Luzuka v. Chuang) the Plaintiff was involved in an intersection collision.  Both fault and value of the claim were at issue.  ICBC, through the defendant’s counsel, made a formal settlement offer in 2007 for $40,000.  This offer was rejected by the Plaintiff.  The claim proceeded to trial which lasted 9 days before a Judge and Jury.  The Jury dismissed the Plaintiff’s claim finding that she did not prove the Defendant was responsible for the collision.
The Defendant sought an award of costs up to the date of delivery of the offer and double costs from that point on.  The application was largely successful and Mr. Justice Harvey noted that the “deterrent functions” of punishing a party who refused to accept reasonable settlement offer should not be ignored in such applicaitons.  Specifically Mr. Justice Harvey found as follows:

[24] The offer to settle was one which ought to reasonably have been accepted by the plaintiff within seven days of the disclosure to counsel of the identity of the witness, Ms. Kapil, which occurred during examinations for discovery on November 27, 2007.

[25] By that date, the plaintiff’s medical condition was well defined and it ought to have been clear to the plaintiff that liability for the accident was seriously in dispute.

[26] As was noted by Hinkson J. in Bailey, at para. 39, a refusal to award double costs following the date determined that the offer of the defendants ought reasonably to have been accepted, “would completely ignore the important deterrent function of the Rules”.

[27] Therefore, the defendants are entitled to costs and disbursements of the action until December 4, 2007, pursuant to Rule 57(9). Thereafter, the defendants are entitled to double costs together with actual disbursements, pursuant to Rule 37B(5)(b).

While no mention of the amount is made, the costs and disbursements stemming from this order would likely be in the tens of thousands of dollars.  This ‘deterrent‘ effect is a real one and unfortunately needs to be accounted for when preparing for trial where a formal settlement offer is made under Rule 37B.

As readers of this blog are likely aware, Rule 37B will be replaced with Rule 9 on July 1, 2010 when the new BC Civil Rules come into force. The new rule uses language that is almost identical to Rule 37B which should help cases such as this one retain their value as precedents.

$55,000 Non-Pecuniary Damages for Chronic and Pervasive Back Pain

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

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry (Wilson v. Manzano), awarding a Plaintiff over $350,000 in total damages as a result of chronic soft tissue injuries sustained in a 2004 BC Car Crash.
The collision occurred at a relatively low speed with the Defendant accelerating from a stop on the mistaken belief that his light turned green.  He rear-ended the Plaintiff’s vehicle which was stopped in front of him.  The crash caused about $5,000 in damages to the Plaintiff’s vehicle.
The Plaintiff was injured despite the relatively low speed of the crash as she was in a vulnerable position at the moment of impact with her “head and upper body turned toward (a rear seat passenger).”
The Plaintiff’s GP gave evidence that she suffered from a ‘chronic myofacial pain in the upper lumbar area‘ as a result of this crash and that she went on to develop a ‘chronic pain syndrome in the back‘.  The medical evidence established that this injury was permanent and would likely continue to adversely effect the Plaintiff in the future including limiting the types of jobs she could take advantage of.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $55,000 Mr. Justice Bernard summarized the effect of these injuries on the Plaintiff’s life as follows:

[37] The collision in question was one of moderate impact. The significance of it in relation to injury is not the force of the impact, per se, but rather that the impact came without warning while Ms Wilson’s body was in a particularly vulnerable position in relation to the effect of the force upon her. Ms Wilson was seated in the driver’s seat, but not facing forward. Her head and body were twisted to the right so that she could converse face-to-face with her nephew who was seated in a rear passenger seat. Given these circumstances, it is not surprising that she might have sustained an injury qualitatively different than the usual “whiplash” and that her prognosis for recovery might also be quite different.

[38] I am satisfied that Ms Wilson is neither an idle complainer nor a hypochondriac. At the time of the collision she was a strong, healthy, active and vibrant woman who was happily employed in a relatively physically demanding job. Within hours after the collision, she was in tears and paralyzing pain from a spasm in her lower back. At 4:30 a.m. she took a hot shower to help alleviate the spasm. She attended her job site the next morning and was in so much pain by the end of the day that she stopped at a medical clinic en route to her home and received pain medication. Thereafter she saw her family physician and went through a physiotherapy program. She wants to recover from her injury and get on with her life as she knew it, but she has been able to make very little progress in that regard.

[39] Ms Wilson’s back pain, caused by the collision, has not abated. I am satisfied that there is no prevarication or exaggeration in relation to her symptoms. I also find that there were no intervening events which might reasonably account for the pain she now suffers. There were some medical issues subsequent to the collision; however, I am satisfied that none of these were related to the chronic back pain from which Ms Wilson suffers. There has been continuity of symptoms since the collision. There is no evidence of events inconsistent with Ms Wilson’s claims; to the contrary, her family, friends, and co-workers corroborate her continuous suffering and the significantly negative impact the injury from the collision has had upon her life. Ms Wilson’s frustration with the pain and the manifold ways it has affected her life is palpable. The evidence establishes that her chronic back pain has forced her to give up most, if not all, of her activities and pursuits, both in leisure and work, which she found enjoyable, fulfilling, and rewarding. The pain she suffers has made her very unhappy. It has robbed her of a rewarding career and fulfilling pastimes. It has jeopardized valued personal relationships.

[40] I am similarly satisfied that her pain symptoms are now chronic, with no reasonable prospect of amelioration except over the course of many years, if not decades. In this regard, I accept the diagnosis and prognosis of Dr. Mason. He presented as a very knowledgeable physician and a reasonable man who knows Ms Wilson, as his patient, well. His opinion is corroborated, in critical aspects, by Dr. Gouws…

[48] I accept that each of the cases cited bear some similarities to the case at bar and establish a range of damages from $40,000 to $100,000. These cases offer some guidance; however, each set of circumstances is unique, as is each plaintiff. I consider two compelling aspects of the case at bar to be: (a) the pervasiveness of the injury upon the plaintiff’s life, and (b) the reasonable prospect of some amelioration of her symptoms over time. In all the circumstances, and having regard to the cases cited, I set the award for non-pecuniary losses at $55,000.

Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, Uncategorized. 54 Comments on Pain and Suffering Awards with Pre-Existing and Progressive Conditions

Reasons for judgement were released today by the BC Supreme Court dealing with a fair range of damages for pain and suffering when an accident victim has a pre-existing condition which likely would have been progressive and painful without the accident.
In today’s case (Kaur v. Bhoey) the Plaintiff was injured in a 2005 BC Car Crash.  She was a passenger and her vehicle lost control and she struck a utility pole.  She was apparently concussed in this collision and was in and out of consciousness at the scene of the crash.
The Plaintiff had a pre-existing condition (osteoporosis with spinal compression fractures) which may have been progressive and led to chronic back pain even without the crash.
Mr. Justice Truscott found that the crash caused ‘soft tissue injuries‘ which caused a ‘kyphotic condition‘ otherwise known as a humpback.   The Court held that, despite the injury, there was “a significant risk that (the plaintiffs) osteoarthritis would have led to more back fractures and more pack pain and kyphosis”  He went on to award $50,000 in damages for the plaintiff’s pain and suffering.  In arriving at this figure Mr. Justice Truscott summarized the law and the key findings of fact as follows:

[5] The plaintiff had pre-existing medical conditions that may affect the value of her claim from this accident and that require consideration of the legal principles confirmed by the Supreme Court of Canada in Athey v. Leonati, [1996] 3 S.C.R. 458.

[6] Athey confirms that an injury is caused by the defendant’s negligence as long as that negligence materially contributes to the injury even though there may be other causes that contribute to the injury as well.

[7] However, on the issue of the proper assessment of a plaintiff’s damages, Athey says, commencing at para. 35 on p. 473:

The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage… Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award… This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position…

[137] I accept that the kyphotic condition the plaintiff suffers from was caused by her low back soft tissue injuries sustained in the motor vehicle accident, and not by her pre-existing spinal compression fractures. I accept Dr. Hershler’s opinion in this regard.

[138] I accept Dr. Hershler’s opinion that the two compression fractures the plaintiff had before the accident in her low back were insufficient to cause this kyphotic condition.

[139] Dr. Hershler was able to push the plaintiff’s back to make her stand erect and that is some evidence that the kyphotic condition is being caused by pain and not by the compression fractures in her spine.

[140] This is not to conclude, however, that the plaintiff did not already suffer from some back pain before the accident caused by the compression fractures in her low back, in turn caused by her osteoporosis. Dr. Panesar’s records, and his evidence, as well as Dr. Yorke’s reports, set out previous incidents of back pain.

[141] I do accept, however, that prior to this motor vehicle accident these incidents were being generally controlled by medication.

[142] Still, such a finding does not answer the issue raised in Athey as to whether the plaintiff would have suffered her present state of back pain and accompanying kyphotic condition in any event of the motor vehicle accident, or at least there was a measurable risk of that occurring absent the motor vehicle accident that must be taken into account in reducing the overall award.

[143] With the plaintiff having a history of osteoporosis, with spinal compression fractures and incidents of back pain which Dr. Panesar referred to in 2001 as chronic, and with her advancing age, I am satisfied that the award for general damages must be discounted for the significant risk that her progressive osteoporosis would have led to more back fractures and more back pain and kyphosis, in any event…

[149] Taking into account here that the plaintiff is much older with a shorter life expectancy, and has pre-existing medical issues directly related to her present problem of low back pain, including progressive arthritis, I conclude there is a measurable risk that her pre-existing medical issues would have detrimentally affected her physically in the future regardless of the defendants’ negligence in this motor vehicle accident, and I assess her general damages for pain and suffering from this motor vehicle accident at $50,000.

ICBC Injury Claims, Lawyers and Trials

Written by admin on . Posted in Uncategorized.

Many people that are unhappy with an ICBC settlement offer seek the advice of a personal injury lawyer.  Often times, however, people don’t consult with a lawyer because of the mistaken belief that if they hire a lawyer they will have to go to trial to resolve their injury claim.  Some revealing statistics were released today showing just how few ICBC Injury Claims proceed to trial, even when claimants are represented by a lawyer.
Today the Office of the Information & Privacy Commissioner released their report into the Investigation Into Disclosure of Jurors’ Personal Information by ICBC.
In the body of the report statistics about the number of ICBC Claims settled in 2008 were revealed.  Specifically page 4 of the report noted that “An example of the number of claims handled by the division in a given year is available from 2008 when approximately 674,500 claims were settled.  Individuals were represented by lawyers in approximately 21,500 of settled claims.  Only 299 of the claims proceeded to trial and only 37 were jury trials.”
If you do some quick math on the above figures you will see that only 1% of the people that hired lawyers and resolved their ICBC claims in 2008 actually went to trial.  In other words, one in one hundred people who hired a lawyer for their ICBC Claim went to trial.
While there are many reasons why injury victims may choose not to consult with a lawyer these statistics show that the fear of an inevitable trial should not be one of them.