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BC Injury Claims and the Local Government Act

Written by admin on . Posted in Civil Procedure, Uncategorized. 73 Comments on BC Injury Claims and the Local Government Act

Limitation periods can be complex.  Typically if a person is injured through the negligence of another in British Columbia a 2 year limitation period applies to bring a claim for damages in Court.  However, there are numerous exceptions and restrictions to this general rule and one restriction is contained in the Local Government Act.
If you are injured and can bring a claim against a municipality you will lose your right to make your claim unless you comply with s. 286 of the local government act which provides as follows:
Immunity Unless Notice Given To Municipality After Damage
(1) A municipality is in no case liable for damages unless notice in writing, setting out the time, place, and manner in which the damage has been sustaibed, is delivered to the municipality within 2 months from the date on which the damage was sustained.

(2)        In case of the death of a person injured, the failure to give notice required by this section is not a bar to the maintenance of the action.

(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 reasonable excuse, and

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

This limitation arises in many different cases including BC Car Crash cases.  For example, if you are injured by a Municipal worker in the course of his employment or someone driving a Municipal owned vehicle at the time of a crash this limitaiton can be triggered.  This obscure and very short limitaiton has been the death of many personal injury claims over the years and reasons for judgement were released today by the BC Suprene Court showing this ‘immunity’ in action.

In today’s case (Persall v. Bond) the Plaintiff was injured in a 2006 motor vehicle collision.  The Plaintiff brought a claim against the City of Surrey claiming that “the City failed to design, inspect and maintain the Intersection properly“.

The Plaintiff did not give the City written Notice in 2 months as required by the Local Government Act.  The City of Surrey brought an application to dismiss the Plaintiff’s claim against them for this failure and this motion was granted.

In granting the motion Madam Justice Dickson summarized and applied the law as follows:

[16]         When notice is not given to a municipality within two months in accordance with the statutory obligation, the onus is on the plaintiff to prove a reasonable excuse:  Keen v. City of Surrey, 2004 BCSC 1161, ¶ 17.

[17]         What may constitute a reasonable excuse will depend on the circumstances of each case.  Courts in British Columbia have taken various factors into account in assessing whether a plaintiff has a reasonable excuse for providing late notice.  They include:

a)       The plaintiff’s knowledge of the statutory obligation to provide notice;

b)       Actions or representations by the local government which have the effect of lulling the plaintiff into a false sense of security;

c)       The plaintiff’s awareness of his/her injuries and awareness of the seriousness of his/her injuries;

d)       The plaintiff’s awareness of the involvement of the local government in the matter giving rise to the litigation; and

e)       The plaintiff’s capacity to provide notice.

Griffiths v. New Westminster (City of), 2001 BCSC 1516
Keen v. City of Surrey, supra
Teller v. Sunshine Coast (Regional District of), 1990 CanLII 2131 (B.C.C.A.)

[18]         In Keen, Burnyeat J. held that ignorance of the law alone will not constitute a reasonable excuse for failure to provide timely notice pursuant to s. 286 of the Act.  Rather, it is but one of the factors to be taken into account:  Teller.

[19]         When a plaintiff acts through a solicitor, responsibility for providing a municipality with timely notice of a damages claim is shared.  In Horie v. Nelson (1987) Can LII 2508 (B.C.C.A.), a majority of the British Columbia Court of Appeal held that a solicitor’s negligent failure to deliver timely notice does not necessarily constitute a reasonable excuse.  In response to an argument that the appellants relied on their solicitor to deliver notice, but the solicitor inexplicably failed to do so, MacDonald J.A. stated:

[18]      … That approach can only help the appellants if they can put forward their own reasonable conduct and dissociate themselves from the failure of their solicitor.

[19]      I agree with Locke J. when he said in the course of his reasons [p. 112]:  “I am driven further by the wording of the section of our statute to hold that the responsibility for delivering the notice is collective in that, if the notice is not delivered, it does not matter by whose hand the failure occurred”.  The section requires reasonable excuse for “failure to give the notice”.  That means that when a party acts through a solicitor the conduct of both must be examined to determine whether there was reasonable excuse for failure to give the notice.

[20]      In my opinion the judge was correct in his conclusion. I would dismiss the appeal.

[20]         When a plaintiff is able to establish a reasonable excuse for failing to provide timely notice, the Court must go on to consider whether the municipality has nevertheless been prejudiced in its defence.  If so, the action against it cannot be maintained despite the existence of a reasonable excuse.

[21]         The onus is on the municipality to prove it has suffered prejudice as a result of receiving delayed notice.  Prejudice may be presumed on the basis of inordinate delay.  In such circumstances, however, it is open to the plaintiff to rebut the presumption of prejudice:  Griffiths.

[22]         In most cases, the issue of prejudice cannot be determined until the end of the trial.  This is so because whether a defendant has, in fact, been prejudiced will depend on the allegations pursued by the plaintiff at trial and the conclusions the Court is asked to draw:  Teller.

DISCUSSION

[23]         The City submits that Mr. Persall has not provided an excuse, reasonable or otherwise, for his failure to provide timely notice of his damages claim to the municipality.  It argues that knowledge of the statutory obligation should be imputed to Mr. Persall, given his failure expressly to deny it, and presumed of his previous solicitors.  Taking into account Mr. Persall’s apparent ability to instruct counsel from the outset despite his injuries, in the City’s submission there is no basis for a finding of reasonable excuse.

[24]         The City also submits that it has been demonstrably prejudiced by the long delay in notification.  The Intersection’s condition at the time of the Accident is presently unknown and would likely have been easier to ascertain had timely notice been received.  In addition, the 18-month delay at issue is excessive and inordinate.  In these circumstances, prejudice should be presumed.

[25]         Mr. Persall responds that his serious injuries, together with his reasonable conduct in leaving the matter of notification to his solicitors, constitute a reasonable excuse.  He submits the Court should infer he was personally unaware of the notification requirement and unable fully to instruct counsel until he was released from GF Strong in January, 2008.  He emphasises that notice was provided shortly after his present solicitors were retained, but concedes his previous solicitors’ failure to provide timely notice is unexplained.  In the event a reasonable excuse is found, he submits the issue of prejudice should be determined at trial as evidence of the Intersection’s condition at the relevant time may well come to light.

[26]         I accept that Mr. Persall’s discovery evidence as to his knowledge of the statutory notice requirement is less than crystal clear.  I am nonetheless satisfied that an absence of personal knowledge can be reasonably inferred and conclude he was personally unaware.  This does not, however, constitute a reasonable excuse, given Mr. Persall’s demonstrated capacity to instruct counsel within weeks of the Accident and his previous solicitors’ unexplained failure to notify the City of his damages claim.

[27]         It is not difficult to posit various explanations for the failure of Mr. Persall’s previous solicitors to provide the City with written notice of his damages.  One is that they formed the view the City would not be held liable and chose consciously not to notify.  Another is that they were unaware of, or insufficiently attentive to, the statutory notice obligation.  In the absence of evidence on the point, however, a factual conclusion simply cannot be reached.

[28]         As stated by MacDonald J.A. in Horie, when a plaintiff acts through a solicitor responsibility for delivering notice of damages in accordance with the Act is collective.  Accordingly, the Court must examine the conduct of both to determine whether there was a reasonable excuse for late notification.  In my view, the reason is obvious.  A plaintiff will not be excused from the statutory notification obligation merely because he or she retains a new solicitor who adopts a new approach to a potential claim for damages against a municipality.  Were it otherwise, the Legislature’s decision to impose a short limitation period for such claims would be easily overcome.

[29]         In this case, I am satisfied that Mr. Persall acted through his previous solicitors from no later than October 10, 2006 in connection with the Accident.  I am unable to reach a conclusion, however, as to why those solicitors did not provide the City with written notice of his damages as required by the Act.  That being so, I am unable to determine whether Mr. Persall does or does not have a reasonable excuse for his failure to comply with his statutory obligation to provide timely notice to the City.  The onus is on Mr. Persall to establish a reasonable excuse.  The onus has not been met.

[30]         If I am wrong and Mr. Persall does have a reasonable excuse as a result of his injuries and the unexplained inaction of his previous solicitors, I agree with him that the issue of prejudice cannot be determined until the end of the trial.

$125,000 Non-Pecuniary Damges Awarded for MTBI, Chronic Pain and Depression

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

After what appears to be a hard fought trial, reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding just over $536,000 in total damages as a result of injuries and loss as a result of a 2001 BC Car Crash.
In today’s case (Zhang v. Law) the Plaintiff was injured when she was a passenger in a vehicle that was T-boned on the driver’s side by another vehicle.  As a result of this collision she suffered various injuries including a Mild Traumatic Brain Injury (MTBI), Chronic Pain and Depression.
The Court heard a lot of evidence about the potential causes for the Plaintiff’s Depression.  The Defendants argued that the Plaintiff’s ongoing problems and depression was not caused by the accident, but rather by a series of unfortunate events that followed including a miscarriage and serious health problems suffered by her husband.
In navigating this evidence Mr. Justice Sewell did a good job discussing the law of ‘causation’ in BC personal injury claims.  In awarding $125,000 for the Plaintiff’s Non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) the Court concluded as follows about the Plaintiff’s injuries, their cause, and their effect on her life:
In summary I find that Ms. Zhang did experience a decline in her cognitive abilities after the accident.  I have already found that this decline was due in part to the MTBI.  I now turn to a consideration of the extent to which depression contribute to these difficulties and to the etiology of that depression…
I conclude that Ms. Zhang continues to suffer depressive symptoms, pain and fatigue.  I find that there has been cognitive impairment caused by the MTBI and the depressive symptoms.  I also find that the chance of any significant improvement in her condition in the future is remote….
In my view this case is governed by the principles enunciated in the Supreme Court of Canada in Athey v. Leonati [1996] 3 SCR 458.  On the issue of causation I have already found that the injuries suffered in the motor vehicle accident were a necessary cause of the depression.  To paraphrase paragraph 41 of Athey, I have found that it was necessary to have both the injuries from the accident and the non-tortious causes for the depression to occur.  As in Athey, I have concluded that it was the combination of the accident, the effect of Mr. Chen’s illness, the loss of the foetus and the termination of the second pregnancy which caused the major and continuing depression.  The depression and continuing depressive symptoms are, in my opinion, an indivisible injury.  The other sources of Ms. Zhang’s difficulties, soft tissue injury and MTBI, are of course entirely attributable to the accident…

The analysis of damage does not end with causation.  It is still necessary to consider whether there was some realistic chance that the depression would have occurred without the motor vehicle accident.  This does not go to the issue of causation but rather to the question of assessing damages which will restore Ms. Zhang to her original position.  If her original position included a realistic chance that she would have suffered a depression in any event, the principles of compensation  require some reduction in the damages awarded to avoid putting her in a better position than she would have been in had she not received compensation for the accident.  It goes without saying that “better” does not mean better in fact but better notionally because she will have received adequate monetary compensation for the damages caused by the defendants’ negligence.

In this case the analysis is further complicated.  Of the three causes of Ms. Zhang’s ongoing problems, pain, MTBI, and depression, only depression could be said to have been a realistic chance in the absence of the accident.  On the evidence before me I find that, although the accident was a necessary cause of the depression, there was never the less a realistic chance that Ms. Zhang would have suffered a major depression in any event.  That realistic chance must be taken into account in assessing damages…

Given my findings as to the extent of Ms. Zhang’s injuries from the accident a substantial award for non-pecuniary damages is appropriate. As I have already indicated, my task is to make an award of damages which, so far as money is able, will restore Ms. Zhang to her original position.  The evidence before me is that before the accident Ms. Zhang was an outgoing and intelligent person with a positive attitude to life.  She was able to combine long hours of work with numerous activities which gave her pleasure.  She enjoyed walking and socializing with friends.  She and her husband went to movies and went ballroom dancing.  She enjoyed music.  Ms. Zhang and Mr. Chen also had fulfilling marital relations.

All of the above activities have been profoundly affected by the injuries Ms. Zhang suffered in the accident.  Ms. Zhang is no longer outgoing but reclusive.  Most of her energy is devoted to working her shift at Safeway.  At the end of each shift the combination of pain and fatigue preclude her from engaging in social activities.  She can no longer tolerate music.   The couple no longer goes to movies or dancing.  There has been a significant decline in marital relations.  While some of these outcomes are undoubtedly related to Ms. Zhang’s ongoing depressive symptoms, they are largely the result of the other injuries suffered in the accident.  Taking into account the impact of these injuries on Ms. Zhang’s life while at the same time recognizing the realistic chance that Ms. Zhang would have had to cope with depression in any event, I award non-pecuniary damages of $125,000.

One other interesting part of this case is the Court’s discussion of the various experts called at trial.  Many expert physicians testified for the Plaintiff and the Defence with substantially differing views of the cause and extent of the Plaintiff’s injuries.  This is often the case in serious ICBC injury claims.

When experts are retained by ICBC in Injury Cases they are permitted to charge for their services. As I have previously posted, ‘independent’ medical examinations can be a lucrative trade for doctors.   When experts are retained to testify at trial, however, their duty is to the court to give fair and impartial evidence, not to advocate for the side that hired them.  Occasionally expert witnesses stray from this duty and give ‘partisan’ evidence.

This duty has been recognized in the common law and now the New BC Supreme Court Rules have been amended to require doctors to certify that they understand this duty, specifically Rule 11-2 of the New Rules states as follows:

Duty of expert witness

(1) In giving an opinion to the court, an expert appointed under this Part by one or more parties or by the court has a duty to assist the court and is not to be an advocate for any party.

Advice and certification

(2) If an expert is appointed under this Part by one or more parties or by the court, the  expert must, in any report he or she prepares under this Part, certify that he or she

(a) is aware of the duty referred to in subrule (1),

(b) has made the report in conformity with that duty, and

(c) will, if called on to give oral or written testimony, give that testimony in  conformity with that duty.

In today’s case one of the defence doctors, Dr. Tessler, was found to be ‘advocating for the defence’ when testifying.  Specifically the Court said as follows about his evidence at trial:

Dr. Tessler was somewhat dismissive of Ms. Zhang’s symptoms after the accident.  He described them as being the “mildest of the mild”.  I found this comment, as well as certain remarks he made during his evidence, as being indicative of an attitude on his part that Ms. Zhang’s complaints should not be taken too seriously.  I was particularly troubled by a comment made by Dr. Tessler in cross examination to the effect that Ms. Zhang’s symptoms may settle after litigation.  Apart from the fact that Dr. Tessler was not qualified as an expert in psychiatry or psychology, the comment was gratuitous.  On the whole I formed the impression was Dr. Tessler was straying into the area of advocating for the defence point of view in his evidence.   I do not think he was doing so deliberately but he did seem to show a lack of balance and perspective in his evidence.

BC Court of Appeal Weighs in on ICBC's LVI Program and Human Rights

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, Uncategorized.

In reasons for judgement released today the BC Court of Appeal dealt with the issue of whether ICBC’s LVI Program violates Human Rights in BC.
In today’s case the Appellant was involved in a BC Car Crash.  He allegedly was injured and brought a tort claim against the other motorist.  ICBC, as is often the case in BC Car Crash cases, was the insurer for both the Appellant and the other motorist.  In the course of defending the tort claim ICBC relied on their LVI Program and denied that any compensable injury took place.
The Appellant brought a human rights complaint claiming that ICBC’s LVI Program was a ‘discriminatory practice’.   In response ICBC brought a motion seeking to have the complaint dismissed on the basis that it had ‘no reasonable prospect of success”.  The Human Rights Tribunal dismissed ICBC’s application. ICBC appealed to the BC Supreme Court and the Court held that the Tribunal was wrong and indeed the Appellant’s complaint had no reasonable chance of success.
The appellant brought this matter to the BC Court of Appeal.  The Court of Appeal agreed that the claim was ‘patently unreasonable’ and that the Appellant’s Human Rights Tribunal Complaint should have been dismissed.
Below I reproduce the key portions of the Court of Appeal’s reasoning:

[16] The issue before the Tribunal was a straightforward one. Mr. Yuan’s claim was placed in the LVI program because he was involved in a low-speed collision. As the chambers judge pointed out, nothing in the Human Rights Code serves to protect people from being treated differently by reason of the speed of collision that they are involved in.

[17] The tribunal member confused the issue by referring to the matter as one that might be characterized as discrimination on the basis of physical disability. This characterization was erroneous for two reasons. Firstly, the Code does not protect anyone from being discriminated against on the basis that he or she suffers no disability. It does not, in other words, prevent anyone from treating the disabled better than those who are not disabled.

[18] Just as importantly, it cannot be said that an insurance company, whose contractual and statutory duties are to compensate those who suffer disabilities as a result of motor vehicle accidents, “discriminates” when it treats those who it perceives as having compensable injuries differently from those who it perceives as uninjured. That sort of differentiation is the very function of the corporation; it does not constitute discrimination.

[19] In the result, it is obvious that Mr. Yuan’s claim had no reasonable prospect of success. Indeed, it had no prospect of success at all; it was entirely misconceived. That, however, is not the issue that was before the Supreme Court on judicial review.

Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Brain Injury Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, Uncategorized. 50 Comments on Mild Traumatic Brain Injury and Chronic Pain Valued at $125,000

Reasons for judgment were released today by the BC Supreme Court dealing with compensation for serious injuries including Mild Traumatic Brain injury and Chronic Pain.
In today’s case (Slocombe v. Wowchuck) the Plaintiff was injured in a 2005 rear-end BC Car Crash.  Liability was admitted so the trial focused solely on quantum of damages.  The Plaintiff suffered serious injuries.   Total damages of over $940,000 were awarded by Madam Justice Morrison including an award of $125,000 for non-pecuniary damages.  In assessing the this head of damage the court summarized the Plaintiff’s injuries and their effect on his life as follows:

[197] This was an accident that has caused serious injuries to the plaintiff.  He suffered a mild traumatic brain injury that he appears to have recovered fully from at this point in time.  Dr. Kaushansky did testify that the plaintiff could be at risk if there were a further blow to his head.

[198] The injury to the plaintiff’s sternum no longer poses problems.  There has been a full recovery.

[199] The plaintiff still experiences headaches following the accident.  However, the serious headaches have been resolved, and the headaches the plaintiff now gets are certainly real, but they are not of the serious and disabling nature that they were initially.

[200] Mr. Slocombe still complains of some neck problems, but these complaints are periodic, and are not the cause of his serious complaints at this time.

[201] The second worst injury was to the thoracic spine area.  This pain continues, and has been referred to as a soft tissue type of injury.  Dr. Rothwell was of the opinion that the degenerative disc disease processes have been generated in the spine, including the thoracic spine area by the motor vehicle accident.  It is unlikely that there will be further recovery in this area.  I accept this opinion.

[202] The most serious area of injury is to the lumbosacral spine area.  This injury began at the instant of the double impact of the accident, and has continued to a painful degree to this day.  I conclude that the chronic pain has had a profound effect on the plaintiff’s life in all areas, and will continue to do so.  I accept the evidence of the plaintiff’s medical experts who find the motor vehicle accident was the cause of this injury.

[203] Mr. Slocombe had a pre-existing asymptomatic spondylolisthesis, and in my view, this became symptomatic as a result of the accident.  That is the only conclusion that can be reached, from all the evidence, on a balance of probabilities.

[204] There was medical evidence at trial that there are other areas of injury in the lumbar spine area in addition to the spondylolisthesis that have now been rendered symptomatic.

[205] When working at his carpentry, Mr. Slocombe is making mistakes that he was not making prior to the accident.  He is experiencing some cognitive difficulties which the doctors, including Dr. van Rijn and Dr. Mok as well as Dr. Kaushansky attribute to the pain and mood difficulties that he has been experiencing since the accident.  These difficulties are particularly apparent the longer Mr. Slocombe works.  They have been confirmed by testing and also by the evidence not only of the plaintiff but also of his father and Mr. Graham, one of his clients.  These cognitive difficulties are continuing…

[229] Tom Slocombe’s life has changed dramatically due to the accident.  He no longer has the high energy, endurance and health to perform the work that he loves, carpentry, or to take part in the social and sporting activities that gave him such pleasure.  He is in constant pain, and will probably be for the rest of his life.  He was an active, fun-loving 25 year old with a good job, good prospects, and a steady girlfriend who became his fiancée.  He had a vehicle that he was making sure he was paying for, and a life that included active sports, travel and social activities with friends and family; he was usually the initiator.

[230] He is no longer able to be independent financially, he has no vehicle, and he has the added difficulty of not being able to sit for any length of time.  His passion for carpentry has been lifelong.  It is apparent he will not be able to earn his living and continue with this line of work.

[231] His family and others testified to his change in disposition and mood, his inability to join their normal activities, and his difficulties in coping with his pain and sleeplessness.  His enjoyment of life has been dramatically altered.  There will be an award for non-pecuniary damages in the amount of $125,000.

$75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized. 45 Comments on $75,000 Non-Pecuniary Damages Awarded For Chronic Pain and Headaches

Reasons for judgement were released today (Testa v. Mallison) by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for injuries and losses suffered as a result of a 2004 BC Car Crash.
The Plaintiff’s vehicle was rear-ended while stopped in traffic.  The issue of fault was admitted leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s claim).  The Plaintiff suffered injuries to her low back, her neck, shoulders, chest and headaches.
Some of the Plaintiff’s injuries fully resolved, others did not.  By the time of trial the Plaintiff complained of the following ongoing problems “constant pain in her neck from the base of her skull up and down the neck to her shoulders and radiating into her head and temple area.  The pain is lowest first thing in the morning but builds up by afternoon and can get quite severe.  She experiences crying from the pain while in her car driving home.  She can’t stand even the sound of having the radio on.  Her sleep is most often disturbed and intermittent.”
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000, Mr. Justice Holmes accepted the following evidence:

[48] I accept Dr. O’Connor’s opinion that the 2004 motor vehicle accident caused the plaintiff:

1.       aggravation of a pre-existing neck condition and aggravation and worsening of her existing cervical spondylosis.

2.       cervicogenic headaches, with a migrainous component, and most likely triggered by neck pain.

3.       low mood, deconditioning and sleep disturbance.

[49] Dr. O’Connor’s prognosis is that the plaintiff’s ability to function is primarily determined by her ability to cope with her chronic pain.  That pain level has remained constant over a 2 to 3 year period and she rates it as severe.  Dr. O’Connor is of the opinion that the plaintiff’s pain symptoms are going to persist indefinitely.

[50] Treatment options are very limited.  Exercise with emphasis on core conditioning is paramount. A regime of pain and sleep medication is needed.

[51]         Dr. Shuckett examined the plaintiff September 10, 2008 and as with Dr. O’Conner was provided with comprehensive historic health care provider records of the plaintiff’s treatment for neck, shoulder, back and hip pain and headaches.  Dr. Shuckett’s diagnoses of injury in the 2004 accident are:

1.               cerviogenic headaches with migraine features

2.               whiplash injury of the neck mainly left sided neck pain but also with painfull trigger points

3. myofacial pain syndrome of neck and shoulder girdle region with painful trigger points.

[52] Dr. Shuckett considered causation and concluded at page 11 of her report:

Thus, I believe that her current pain in the neck and shoulder girdles and her headaches are predisposed to by her pre-existing history, but it sounds to me like this pre-existing history was not that significant in the three years before the subject motor vehicle accident of March 23, 2004.  She had mainly left hip girdle pain before the subject motor vehicle accident.

[53]         Dr. Shuckett’s opinion is that the plaintiff “…will be dealing with her symptoms in the long term future.

[54]         I prefer the opinions of Drs. Deernsted, O’Connor and Shuckett to that of Dr. Sauvio in regard to the plaintiff’s March 23, 2004 related injuries, their causation and consequence.

[55]         Dr. Deernsted and Dr. O’Connor have a significant advantage of treating the plaintiff over time.  Dr. O’Connor and Dr. Shuckett concluded a careful review of historic medical clinical records and specifically considered causation issues.

[56]         The plaintiff’s neck and shoulder pain and headaches prior to the March 23, 2004 accident were mainly related to her hip problem that occurred in 2001.  The neck and shoulder pain and headaches by the time of the 2004 accident were much diminished.  They had become only intermittent but she was left more susceptible to injury by subsequent trauma.

[57] The accident of March 23, 2004 aggravated those diminished but active symptoms as well as triggering some that were asymptomatic.  The combined injuries to the shoulder and neck are now very severe in their effect and likely permanent.

[58] The plaintiff’s low mood is a consequence of the injuries and their duration.  The plaintiff had a history of migraine headache experience but hey were generally stress related.  The constant migraine type headache she presently experiences is a consequence of her present injuries and triggered by her neck and shoulder pain.

GENERAL DAMAGES

[59]         The plaintiff’s life has been severely impacted by the result of her injuries sustained in the March 23, 2004 accident.  She has constant pain and headaches and suffers from sleep disturbance and altered mood.  She has experienced a substantial quality decline in her ability to work and in both her leisure and social life activities.

[60] The plaintiff is a motivated lady who will persist in using her long standing fitness and running activity to assist in controlling her chronic pain condition.  Unfortunately at most she may only be able to reduce her pain levels to more tolerable or manageable levels and is unlikely to enjoy a full recovery.

[61] I award general damages of $75,000.

BC Injury Claims and "Responsive" Expert Opinion Evidence

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

Currently the law relating to the disclosure of expert opinion evidence is governed by Rule 40A of the BC Supreme Court Rules.   (click here to read my previous posts about the upcoming changes to the Rules of Expert Opinion Evidence).
If a party wishes to introduce expert opinion evidence at trial Rule 40A requires that “a copy of the statement is furnished to every party of record at least 60 days before the statement is tendered in evidence.”
One noteworthy exception to this is the rule of “responsive” opinion  evidence.  If the defence in a personal injury trial obtains a report that does not offer a fresh opinion but rather is an opinion that is ‘truly responsive to evidence introduced by the opposing party”  the 60 day notice period does not apply.
Reasons for judgement were released today by the BC Supreme Court dealing with this area of law.  In today’s case (MacEachern v. Rennie) “the plaintiff suffered traumatic brain injury when her head struck the side of a large tractor-trailer as she was walking or riding a bicycle along the side of King George Highway” in 2005.  One of the Defendants in the Plainitiff’s injury claim sought to introduce the report of a toxicologist which concluded that “the plaintiff was cognitively impaired from the ingestion of drugs at the time of the accident, and that she had permanent brain damage from drug abuse prior to the accident.”
This report was served outside of the requirements of Rule 40A.  The defendant tried to rely on the ‘responsive‘ evidence exception to Rule 40-A and have the report introduced into evidence despite its late disclosure (the report in fact was exchanged after the Plaintiff concluded her portion of the trial).
In refusing to enter the report into evidence Mr. Justice Ehrcke gave the following consice and handy definition of the law of rebuttal opinion evidence in the BC Supreme Court:
The right to introduce opinion evidence without notice is limited to rebuttal evidence that is truly responsive to evidence introduced by the opposing party, and cannot be used as a masquerade for introducing a fresh opinion: Sterritt v. McLeod (2000), 74 B.C.L.R. (3d) 371 (C.A.); Stainer v. Plaza (2001), 87 B.C.L.R. (3d) 182 (C.A.). Where a defendant elicits opinions in cross-examination of a plaintiff’s witness that were not in that witness’s report, the defendant cannot use his own elicitation to justify calling a defence expert to give an opinion on the topic without notice.

Can You Record an "Independent Medical Exam" In an ICBC Injury Claim?

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

When ICBC sends you to an ‘independent’ medical exam for the purposes of litigation in the BC Supreme Court are you permitted to record the examination?
This issue was dealt with by the BC Court of Appeal in a 2006 decision (Wong v. Wong) in which the Court held that BC Courts do have the authority to permit audio recording as part of an order for an independent medical exam but that this discretion should be exercises sparingly.  Specifically the BC Court of Appeal said the following about the courts ability to permit audio recording as a term of an independent medical exam:

[44]           One would think that if the tape recording of a medical or psychiatric examination was thought likely to enhance the quality of such an examination, the medical profession would long since have adopted the use of audio tapes as a general practice.  The material before us shows that use of an audio tape recorder is not only not considered to be an advantage, but rather can be an impediment to a proper, independent examination.  Dr. Smith says that use of an audio tape recorder will alter the nature of a psychiatric exam, and may make the examinee reluctant to answer some questions.  These observations have the ring of simple common sense.  In fact, hundreds if not thousands of psychiatric examinations of both infant and adult plaintiffs have been conducted in this province under Rule 30, or its predecessors, without any suggestion that they might have been of better quality if tape recorded.

[45]           It may well be that the recollection of a plaintiff as to what was said on an examination will differ from the doctor’s notes or recollection.  As Brooke J.A. observes, “the rules proceed on the basis that there may be some disparity” in recollections.  But these differences can be tested in the usual way, as they have been for years.  As in the Bellamy case “… there is no suggestion on the record that any injustice has occurred.”

[46]           It was argued before us that an audio tape recording would provide the “best evidence” at trial of what was said in the examination, in the event of a conflict between the examinee and the doctor, and that the courts should endorse the use of technologies available to provide the best evidence.  The oral history and other information provided by the person being examined is often an important part of the foundation on which the examiner’s opinion is based.  However, any advantage to be gained by tape recording the interview must be weighed against the extent to which it would impede or impair a full and proper examination.  Absent unusual circumstances, I am not persuaded that the presumed advantage would outweigh the disadvantages.

[47]           Apart from any impairment of the examination itself, there are other concerns related to the audio taping of medical examinations.  No matter how good the technology, there will be failures.  A tape recording will no doubt be transcribed and there will be issues before and at trial over the transcription.  The transcript will add an unwarranted level of importance to the oral portion of examination, and another layer of adversarial complexity to the trial process.  None of these difficulties need be encountered.

[48]           While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

Today, reasons for judgement were released by the BC Supreme Court further dealing with this issue.  In today’s case (Kelly v. Sanmugathas) the Defendants sought to have a plaintiff examined by a psychiatrist.  The Plaintiff wished to have the examination recorded.  In permitting the recording Master Donaldson summarized and applied the law as follows:

[2] A number of authorities were cited specifically referring to Dr. Davis.  The decision of the Court of Appeal in Wong stands for the current state of law in British Columbia, namely, that if there is to be a recording it would be only in very limited situations.  Counsel on behalf of the plaintiff referred me to a number of decisions where it was concluded that Dr. Davis was an advocate for the defence and matters of that nature.  Those decisions do not concern me in this instance and do not lead me any closer to reaching the conclusion that the plaintiff should be able to record her visit with Dr. Davis.  What does give me concern are two references, Sinclair, Mr. Justice Hood in 2002, and McGowan, a 1992 decision of Madison, J. in the Yukon, both of which make reference to mistakes having been made.  Fraser, J. in the Edmonds case where he stated: “if [sic] mistakes, likely they were those of Dr. Davis”.  In the McGowan decision, Mr. Justice Madison stated “his opinion was thus based on an erroneous view of the facts.”

[3] Clearly it will be easy enough for a judge in this action to conclude how he or she should assess the opinion of Dr. Davis, but of concern to me, is whether or not Dr. Davis takes an accurate history.  Clearly the recollection of the plaintiff as to the history taken and the reliance on clinical records and the like, will assist the court in determining whether or not Dr. Davis in fact has misapprehension of the facts or he in fact was accurate so far as the facts given are concerned.

[4] I have concluded that recording is the least invasive way of ensuring that Ms. Kelly’s recollection of the facts which have been elicited from her and Dr. Davis’ recollection of the facts elicited from her are accurate.  Her evidence, by way of affidavit, interestingly enough, seems to indicate, if you will, self generated concern about Dr. Davis once she had discussions with her counsel about Dr. Davis.  It is also interesting to note that apparently her concerns only arose after she was ill and could not attend the 28 of May medical examination which had been arranged with Dr. Davis.

[5] Notwithstanding this state of affairs, I am satisfied there should be a recording.  It will be a dual recording:  one tape will be given to Dr. Davis and the other can be retained by Ms. Kelly.

$40,000 Non-Pecuniary Damages Awarded for "Plateaued" Chronic Mid Back Injury

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

Reasons for judgement were released this week by the BC Supreme Court awarding damages for injuries and loss in an “unusually straightforward” personal injury case.
In this week’s case (Sharpe v. Tidey) the Plaintiff was involved in a 2006 BC Car Crash.  Fault was admitted by the Defendants lawyer leaving only the issue of quantum of damages to be decided at trial.
Mr. Justice Voith summarized the Plaintiff’s injuries as follows:
I find that since the accident Mr. Sharpe has had a constant and relatively significant level of pain in his mid-back area.  This pain increases after strenuous activity; yet nevertheless, as mentioned above, I accept that such activity assists in maintaining Mr. Sharpe’s baseline level of pain at a generally lower level…. I find that Mr. Sharpe’s present levels of back pain will likely remain static for at least the next 3-5 years.  It appears likely that over the longer term his symptoms will either actually abate or will be perceived by him to fade to some degree.  There is a real prospect that even over the long-term Mr. Sharpe will not fully recover from his injuries.
In assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $40,000 the court summarized and applied the law as follows:

[44]         In my view, there are a number of cases provided to me by the plaintiff which are of particular value.  These were Kahle v. Ritter, 2002 BCSC 199 22 M.V.R. (4th) 275, Hicks v. GMAC Leaseco. Ltd., 2001 BCSC 1091, and Isert v. Santos, 1999 BCCA 42, 65 B.C.L.R. (3d) 104.  While each of these decisions involves a plaintiff whose claim had attributes that were different from the instant case, they share certain central features.  In each case the plaintiff was generally able to work following their motor vehicle accident, without interruption or with limited interruption.  They involved persons who were particularly active, whose level of activity and enjoyment of such activities defined them, and who had been able to maintain some or all of the activities, albeit in modified or limited form.  Thus, they involved individuals who were not disabled, but who suffered from some impairment of functionality.  Their recovery had largely plateaued.  In my view, however, the impairment suffered by the plaintiffs in these cases was somewhat more severe than that suffered by Mr. Sharpe.

[45]         Mr. Sharpe is a young man in the prime of his life.  Work, sport, travel and his relationship with Ms. Drinkwater are the cornerstones of his life.  Sport and travel, in particular, are central to his social relationships, his sense of well-being, and his activities with Ms. Drinkwater.

[46]         Mr. Sharpe lives with a constant level of pain that is exacerbated when he engages in the very things that give him pleasure.  His recovery appears to have plateaued.  The prognosis for further recovery for at least a number of years is poor.  Furthermore, increased demands arising from his career and the family he hopes to have are a concern for his future.  Conversely, I recognize that if Mr. Sharpe is to undertake graduate studies and have a family in the future, he will have less time to engage in these various sports or activities.  Furthermore, as he gets older it is inevitable that to some extent he would, in any event, be less involved in the more extreme activities in which he has historically participated.

[47]         In my view, in all of the circumstances, the appropriate award for Mr. Sharpe’s non-pecuniary loss is $40,000.

Can a Plaintiff's Treating Doctor Give Expert Opinion Evidence for the Defence in an Injury Claim?

Written by admin on . Posted in Civil Procedure. 104 Comments on Can a Plaintiff's Treating Doctor Give Expert Opinion Evidence for the Defence in an Injury Claim?

Reasons for judgement were released today by the BC Supreme Court dealing with this interesting issue.
In today’s case (MacEachern v. Rennie) the Plaintiff ‘suffered traumatic brain injury when her head came into contact with a tractor trailer while she was walking or riding her bicycle along King George Highway in Surrey, BC”
In the years before the collision the Plaintiff was treated by a physician, Dr. Dowey, who apparently “prescribed methadone (to the plaintiff) as part of her treatment for heroin addiction“.
In the months leading up to the trial the Defence lawyers had a pre-trial interview with the doctor which was not consented to by the Plaintiff’s lawyers.  After speaking with this doctor the defendants decided to rely on him as a witness in their case.
The Defendants called the doctor to give evidence and sought to have the doctor qualified as an expert to give medical opinions about the Plaintiff’s pre-accident condition and prognosis.  The Plaintiff opposed this for several reasons and argued that “it was improper for Dr. Dowey to have pre-trial meetings with counsel for the defendants in the absence of plaintiff’s counsel“.
In permitting the doctor to testify as an expert witness for the defence Mr. Justice Ehrcke of the BC Supreme Court summarized and applied the law as follows:
[22] Plaintiff’s counsel submits that as a treating physician, Dr. Dowey owed the plaintiff a duty of confidentiality not to divulge her personal information without her consent, and that Dr. Dowey breached his duty of confidence when he spoke with counsel for the CN Defendants in the their absence. The submission is that as a result, the CN Defendants should not be permitted to lead evidence of Dr. Dowey’s expert opinions….

[29]         The only question before me, then, is whether Dr. Dowey should be prohibited from giving opinion evidence. He has been subpoenaed by the CN Defendants. As a witness under subpoena, he must answer the questions asked of him unless there is a basis in law for excluding his evidence. The plaintiff does not make a claim of privilege, but rather submits that to permit Dr. Dowey to give expert opinion evidence would conflict with his duty of confidentiality.

[30]         The plaintiff relies on a decision of the Ontario Superior Court of Justice, Burgess v. Wu (2003), 68 O.R. (3d) 710 (Sup. Ct. of Justice). In that case, Ferguson J. emphasized the distinction between pre-trial disclosure and the admissibility of evidence at trial, as well as the distinction between a claim of privilege and the duty of confidentiality. He wrote at para. 55-57:

[55]      It is important at the outset to distinguish between access at trial and access before trial. Once a physician takes the witness stand, and regardless of whether he or she is called by the patient or subpoenaed by the defence, the physician must answer all relevant questions subject to a ruling in unusual circumstances that some subjects are privileged (see the discussion below re M. (A.) v. Ryan, infra). It is irrelevant whether or not the patient consents. The physician cannot refuse to answer on the ground of a duty of confidentiality:  Metropolitan Life Insurance Co. v. Frenette, [1992] 1 S.C.R. 647, 89 D.L.R. (4th) 653, at p. 687 S.C.R., p. 681 D.L.R., per L’Heureux-Dubé J.

[56]      This rule is consistent with the rules of ethics promulgated by the profession and by regulation which specifically state that the duty does not apply to situations where disclosure is “required by law”.

[57]      The issue of concern in the present case is access before trial. The general question is:  what is required by law outside the witness stand? In this context the primary restraint is the duty and right of confidentiality, and not the evidentiary issue of legal privilege.

[31]         Counsel for the plaintiff points out that Ferguson J. went on to hold that the doctor who had treated the plaintiff in that case would be prohibited from testifying as an expert for the defence. Counsel urges me to make a similar ruling here.

[32]         There are, however, two important distinctions between that case and this. First, Ferguson J. made a finding that there had been improper pre-trial contact between the witness and counsel for the defence, and that finding was instrumental in his decision that the witness should not be permitted to testify as an expert for the defence. He wrote at para. 134: “The party at fault should not benefit from the fruits of the impropriety.”  On the facts of the present case, I have found that there was no impropriety in the meeting between Dr. Dowey and counsel for the CN Defendants.

[33]         The second distinction is in the nature of the opinion evidence that is being sought. In Burgess v. Wu, the tenor of the opinion sought was expressed in a letter quoted at para. 21:

We are interested in your views, as a forensic psychiatrist, as to the likelihood that Mr. Burgess would have committed suicide (regardless of the prescription of Seconal), his prognosis otherwise, and the probability of him returning to a functioning lifestyle.

[34]         That is, the opinion sought in Wu related to the patient’s prognosis after the period of time when the witness had treated him. In the present case, counsel for the CN Defendants have stated that they do not seek any opinion from Dr. Dowey about Ms. MacEachern’s prognosis after the last date he saw her, November 29, 2004. More specifically, they do not seek from him an opinion about whether she likely would have continued using drugs after September 2005 had it not been for the accident. They might attempt to elicit such an opinion from another expert who did not treat the plaintiff, but they will not seek such an opinion from her treating physicians.

[35]         Counsel for the plaintiff has referred to the Personal Information Protection Act, S.B.C. 2003, c. 63, but its provisions do not support the plaintiff’s position since s. 3(4) of thatAct provides:

3(4) This Act does not limit the information available by law to a party in a proceeding.

[36]         In the circumstances of this case, I do not find that the duty of confidentiality would prevent Dr. Dowey from giving relevant opinion evidence as a medical doctor in relation to the period of time that she was his patient.

The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

Written by admin on . Posted in Civil Procedure, Uncategorized. 109 Comments on The New BC Supreme Court Civil Rules and Admissibility of Expert Reports

One of the biggest changes in the new BC Supreme Court Civil Rules (click here and here to read my previous posts on these rules) are those with respect to the requirements for admissibility of expert reports.  These changes are significant for ICBC and other Personal Injury Lawyers because these types of lawsuits are heavily dependent on expert opinion evidence.  From medical doctors to engineers to vocational specialists, personal injury trials are perhaps more reliant on expert evidence than any other type of trial.
One thing we should all keep in mind is that as of July 1, 2010 ongoing lawsuits will be deemed to be started under the new rules.  This means that any report ordered now that will be used in trial after July 1, 2010 will have to comply with the new rules.  For this reason it is vital that lawyers and expert witnesses alike become immediately familiar with the new Civil Rules.
Under the current Supreme Court Rules expert evidence requirements are governed by Rule 40-A.  These are rather modest.  Rule 40A(2) requires that expert reports be exchanged “to every party of record at least 60 days before the statement is tendered in evidence” and Rule 40A(5) requires that the reports set out “the qualifications of the expert, the facts and assumptions on which the opinion is based, and the name of the person primarily responsible for the content of the statement”
Under the new BC Civil Rules requirements of expert reports are set out in Rule 11-6.  Below I reproduce Rule 11-6 in its entirety.  On review it is clear that the new rule has significant changes compared to the current Rule 40A.
One of the most obvious changes is the time when expert evidence needs to be exchanged.  Currently reports need to be exchanged 60 days before they are put into evidence.  The new rule requires reports to be exchanged at least 84 days ‘before the scheduled trial date‘ and goes on to create a second category of reports called “responding reports” which need to be served “at least 42 days before the scheduled trial date”
The other significant change relates to requirements for admissibility.    Rule 11-6(1) requires experts to be much more clear and detailed about how they arrived at their opinions as compared to the current Rule 40A.  Although, to be fair, these changes are really little more than a codification of the common law that has developed around Rule 40-A.
The new rule also improves on the disclosure obligations to opposing counsel.  Under the current rule opposing counsel is not entitled to review the experts working files and materials until the expert takes the stand.  This can lead to unnecessary delay and surprise at trial.  Under the new Rule 11-6(8) opposing parties are entitled to fulsome pre-trial disclosure of the experts materials which will let lawyers better prepare for cross examination.
Other parts of Rule 11 contain interesting provisions about court appointed experts, joint experts and the role of the expert in the lawsuit.  I hope to write about these shortly.  Overall these improvements will likely be for the better, however, lawyers and doctors can be stubborn and it may take some adjustment for all of us to get used to these changes.
RULE 11-6 – EXPERT REPORTS
Requirements for report
(1) An expert’s report that is to be tendered as evidence at the trial must be signed by the expert, must include the certification required under Rule 11-2 (2) and must set out the following:
(a) the expert’s name, address and area of expertise;
(b) the expert’s qualifications and employment and educational experience in his or her area of expertise;
(c) the instructions provided to the expert in relation to the proceeding;
(d) the nature of the opinion being sought and each issue in the proceeding to which the opinion relates;
(e) the expert’s opinion respecting each issue and, if there is a range of opinions given, a summary of the range and the reasons for the expert’s own opinion within that range;
(f) the expert’s reasons for his or her opinion, including
(i) a description of the factual assumptions on which the opinion is based,
(ii) a description of any research conducted by the expert that led him or her to form the opinion, and
(iii) a list of every document, if any, relied on by the expert in forming the opinion.
Proof of qualifications
(2) The assertion of qualifications of an expert is evidence of them.
Service of report
(3) Unless the court otherwise orders, at least 84 days before the scheduled trial date, an expert’s report, other than the report of an expert appointed by the court under Rule 11-5, must be served on every party of record, along with written notice that the report is being served under this rule,
(a) by the party who intends, with leave of the court under Rule 11-3 (9) or otherwise, to tender the expert’s report at trial, or
(b) if 2 or more parties jointly appointed the expert, by each party who intends to tender the expert’s report at trial.
Service of responding report
(4) Unless the court otherwise orders, if a party intends to tender an expert’s report at trial to respond to an expert witness whose report is served under subrule (3), the party must serve on every party of record, at least 42 days before the scheduled trial date,
(a) the responding report, and
(b) notice that the responding report is being served under this rule.
Supplementary report of joint or court-appointed expert
(5) If, after an expert’s report is served under subrule (3) (b), the expert’s opinion changes in a material way,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party who served the report under subrule (3), and
(b) the party to whom the supplementary report is provided under paragraph (a) of this subrule must promptly serve that supplementary report on every other party of record.
Supplementary report of own expert
(6) If, after an expert’s report is served under subrule (3) (a) or (4), the expert’s opinion changes in a material way and the party who served the report intends to tender that expert’s report at trial despite the change,
(a) the expert must, as soon as practicable, prepare a supplementary report and ensure that that supplementary report is provided to the party, and
(b) the party must promptly serve that supplementary report on every other party of record.
Requirements for supplementary report
(7) A supplementary report under Rule 11-5 (11) or under subrule (5) (a) or (6) (a) of this
rule must
(a) be identified as a supplementary report,
(b) be signed by the expert,
(c) include the certification required under Rule 11-2 (2), and
(d) set out the change in the expert’s opinion and the reason for it.
Production of documents
(8) Unless the court otherwise orders, if a report of a party’s own expert appointed under Rule 11-3 (9) or 11-4 is served under this rule, the party who served the report must,
(a) promptly after being asked to do so by a party of record, serve on the requesting party whichever one or more of the following has been requested:
(i) any written statement or statements of facts on which the expert’s opinion is based;
(ii) a record of any independent observations made by the expert in relation to the report;
(iii) any data compiled by the expert in relation to the report;
(iv) the results of any test conducted by or for the expert, or of any inspection conducted by the expert, if the expert has relied on that test or inspection in forming his or her opinion, and
(b) if asked to do so by a party of record, make available to the requesting party for review and copying the contents of the expert’s file relating to the preparation of the opinion set out in the expert’s report,
(i) if the request is made within 14 days before the scheduled trial date, promptly after receipt of that request, or
(ii) in any other case, at least 14 days before the scheduled trial date.
Notice of trial date to expert
(9) The person who is required to serve the report or supplementary report of an expert under this rule must, promptly after the appointment of the expert or promptly after a trial date has been obtained, whichever is later, inform the expert of the scheduled trial date and that the expert may be required to attend at trial for cross-examination.
Notice of objection to expert opinion evidence
(10) A party who receives an expert report or supplementary report under this Part must, on the earlier of the date of the trial management conference and the date that is 21 days before the scheduled trial date, serve on every party of record a notice of any objection to the admissibility of the expert’s evidence that the party receiving the report or supplementary report intends to raise at trial.
When objection not permitted
(11) Unless the court otherwise orders, if reasonable notice of an objection could have been given under subrule (10), the objection must not be permitted at trial if that notice was not given.