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New BC Supreme Court Civil Rules – Some Initial Thoughts

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

As I posted yesterday, the BC Government has announced a full overhaul of the current BC Supreme Court Rules to take effect on July 1, 2010. You can click here to read a full copy of the new Rules.  These new rules will apply to all BC Personal Injury and ICBC Claims prosecuted in the Supreme Court after they come into force.
I’ve now had a chance to review these new Rules in their entirety.  The first thing I noticed is that most of the new Rules are similar if not identical to the current ones in their wording.   This is very important as the countless precedents built up over the years interpreting the current rules should still be of significant assistance when applied to the new rules.
More than anything else, the new Rules are organized in a far better fashion than the current BC Supreme Court Rules.  This improvement is more coherent and logical and should make them easier to get through for people unfamiliar with Supreme Court Procedure.
In addition to improved organization, there are some significant changes made to the substance of these Rules.  None of these changes jumped out at me as particularly concerning for personal injury litigation and surprisinly the overall changes seem to be for the better.
For today’s post I’ll illustrate one example.   The current BC Supeme Court Rules have 2 competing ‘fast track litigation’ rules.  Rule 66 and Rule 68.  These rules both have some significant advantages and significant shortcomings for litigants.  These rules overlap and litigants wishing to take advantage of fast track litigation procedures are forced to choose between the 2 rules relative strengths and weaknesses.  Under the New Civil Rules these have been replaced with one “fast track litigation” rule.  This can be found in Part 15 of the new rules.
Rule 15, in my opinion, takes the best aspects of Rule 66 and 68 and leaves out most of their shortcomings. Rule 15, like Rule 68, applies to cases below $100,000.  It also applies to cases that can be completed in 3 days or less and this appears to be independent of the claims value.  This rule does away with the cumbersome ‘will say’ requirement of Rule 68 and allows 2 hour examinations for discovery.  This rule also increases the minimal costs allowable under Rule 66 and permits costs awards more reflective of conventional litigation in the BC Supreme Court.  The Rule also does away with the ‘one expert’ limit of Rule 68 which to date has kept most BC personal injury lawyers from using the rule.
Below I reproduce the new Rule 15 in full.  I’d be interested in the thoughts of other BC Injury Lawyers about the apparent improvements in this rule over our current fast track rules 66 and 68.
RULE 15-1 – FAST TRACK LITIGATION
When rule applies
(1) Subject to subrule (4) and unless the court otherwise orders, this rule applies to an action if
(a) the only claims in the action are for one or more of money, real property, a builder’s lien and personal property and the total of the following amounts is $100,000 or less, exclusive of interest and costs:
(i) the amount of any money claimed in the action by the plaintiff for pecuniary loss;
(ii) the amount of any money to be claimed in the action by the plaintiff for non-pecuniary loss;
(iii) the fair market value, as at the date the action is commenced, of
(A) all real property and all interests in real property, and
(B) all personal property and all interests in personal property claimed in the action by the plaintiff,
(b) the trial of the action can be completed within 3 days,
(c) the parties to the action consent, or
(d) the court, on its own motion or on the application of any party, so orders.
Subsequent filings
(2) If this rule applies to an action,
(a) any party may file a notice of fast track action in Form 61, and
(b) the words “Subject to Rule 15-1” must be added to the style of proceeding, immediately below the listed parties, for all documents filed after the notice of fast track action is filed under paragraph (a) or the court order is made under subrule (1) (d), as the case may be.
Damages not limited
(3) Nothing in this rule prevents a court from awarding damages to a plaintiff in a fast track action for an amount in excess of $100,000.
Rule does not apply to class proceedings
(4) This rule does not apply to a class proceeding within the meaning of the Class Proceedings Act.
Conflict
(5) These Supreme Court Civil Rules apply to a fast track action but in the event of a conflict between this rule and another rule, this rule applies.
When rule ceases to apply
(6) This rule ceases to apply to a fast track action if the court, on its own motion or on the application of any party, so orders.
Case planning conference required
(7) Subject to subrule (8), a party to a fast track action must not serve on another party a notice of application or an affidavit in support of an application unless a case planning conference or a trial management conference has been conducted in relation to the action.
Exception
(8) Subrule (7) does not apply to an application made
(a) for an order under subrule (6) that this rule cease to apply to the action,
(b) to obtain leave to bring an application referred to in subrule (9),
(c) under Rule 9-5, 9-6 or 9-7,
(d) to add, remove or substitute a party, or
(e) by consent.
Court may relieve
(9) On application by a party, a judge or master may relieve a party from the requirements of subrule (7) if
(a) it is impracticable or unfair to require the party to comply with the requirements of subrule (7), or
(b) the application referred to in subrule (7) is urgent.
Trial to be without jury
(10) A trial of a fast track action must be heard by the court without a jury.
Oral discovery
(11) Unless the court otherwise orders, in a fast track action the examinations for discovery of a party of record, including any person referred to in Rule 7-2 (1) (b) who is examined in relation to that party of record, by all parties of record who are adverse in interest must not, in total, exceed in duration
(a) 2 hours, or
(b) any greater period to which the person to be examined consents.
When discoveries must be completed
(12) Unless the court otherwise orders or the parties to the examination consent, all examinations for discovery in a fast track action must be completed at least 14 days before the scheduled trial date.
Setting of trial date
(13) If a party to a fast track action applies for a trial date within 4 months after the date on which this rule becomes applicable to the action, the registrar must set a date for the trial that is not later than 4 months after the application for the trial date.
If trial will require more than 3 days
(14) If, as a result of the trial management conference in a fast track action, the trial management conference judge considers that the trial will likely require more than 3 days, the trial management conference judge
(a) may adjourn the trial to a date to be fixed as if the action were not subject to this rule, and
(b) is not seized of the action.
Costs
(15) Unless the court otherwise orders or the parties consent, and subject to Rule 14-1 (10), the amount of costs, exclusive of disbursements, to which a party to a fast track action is entitled is as follows:
(a) if the time spent on the hearing of the trial is one day or less, $8,000;
(b) if the time spent on the hearing of the trial is 2 days or less but more than one day, $9,500;
(c) if the time spent on the hearing of the trial is more than 2 days, $11,000.
Settlement offers
(16) In exercising its discretion under subrule (15), the court may consider an offer to settle as defined in Rule 9-1.
Taxes to be added to costs
(17) If tax is payable by a party to a fast track action in respect of legal services, an additional amount to compensate for that tax must be added to the costs to which the party is entitled under subrule (15), which additional amount must be determined by multiplying the amount of costs to which the party is entitled under subrule (15) by the percentage rate of the tax.

More on BC Supreme Court Trials and Costs

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

I’ve previously posted that when a Plaintiff in a BC Supreme Court Lawsuit is awarded damages in the Small Claims Court Jurisdiction ($25,000 or less) the Plaintiff is usually not permitted to court ‘costs’.
This is so because Rule 57(10) of the Supreme Court Rules holds that:
A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there is sufficient reason for bringing the proceeding in the Supreme Court and so orders.
Today, reasons for judgement were released by the BC Supreme Court dealing with this section and the issue of when there is ‘sufficient reason for bringing a proceeding in the Supreme Court.’
In today’s case (Munro v. Thompson) the Plaintiff was awarded just over $12,000 for injuries sustained in a 2006 BC Car Crash.  The Defendant was apparently insured by ICBC and subject to ICBC’s Low Velocity Impact Defence.
The Plaintiff brought application seeking court ‘costs’.  He argued as follows:

[7]             The plaintiff says that “sufficient reason” is to be considered as at the time of commencement of proceedings: Riemann v. Aziz [2009] BCCA 448.

[8]             He says that at the date of commencement of the action, he had in hand the reports of two medical experts.  The conclusion arising from those is that it was a moderate/severe whiplash injury impacting on his future vocational capabilities, indicating a loss of capacity claim.

[9]             In these circumstances, counsel for the plaintiff contends there was good reason to bring his action in this court as opposed to the Small Claims division of the Provincial Court.

The defence lawyer argued that the Plaintiff should be deprived of ‘costs’ because the Plaintiff only recovered half of what could have been awarded in Small Claims Court therefore the Plaintiff should have started the lawsuit there.
In accepting the Plaintiff’s position Mr. Justice Williams applied the law as follows:

[22]         In order to determine the merit of the plaintiff’s claim for costs, it is necessary to examine whether he has shown that there was sufficient reason to have justified the decision to commence the proceeding in the Supreme Court.

[23]         Both parties accept that to be the correct analysis.  As well, both agree that the point in time at which the assessment is to be made is when the action in initiated.

[24]         In this case, plaintiff’s counsel had in hand the reports of two medical practitioners when he commenced the proceeding.  The report of Dr. Paterson, a treating chiropractor, concluded that the plaintiff’s symptoms of neck pain and stiffness, headaches, left shoulder pain and weakness are the result of a Grade III whiplash (moderate/severe) that he sustained in his July 6, 2006 motor vehicle accident. …

[25] There was also a medical-legal opinion from Dr. Condon….

26] Based on those opinions, it was not unreasonable for the plaintiff’s counsel to conclude that the action should be commenced in the Supreme Court.  The evidence indicated the likelihood of a viable claim for loss of future earning capacity as well as a not-insignificant claim for general damages.  Taking that into account, I am not prepared to find that his decision to bring the claim as he did was improper:  he had sufficient reason to proceed as he did when the writ was filed….

32] In the result, there is no basis to find that he deliberately misrepresented his situation to the doctors.  I stand by my conclusion that there was sufficient reason for bringing this proceeding in the Supreme Court, and reject the argument that he should be disentitled to the benefit of that finding because of his own conduct.

On another note, I posted yesterday about the new BC Supreme Court Civil Rules which come into force next year.   I have referenced these and it appears that the law as set out in Rule 57(10) of the current rules remains in place in the New Rules.  The relevant provision is set out in Rule 14-1(10) of the new Civil Rules.  The language there is identical to the current Rule 57(10) so precedents such as this case should remain good law after the new rules take effect.

The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

Written by admin on . Posted in Civil Procedure, Uncategorized. 50 Comments on The Times They Are A Changin' – Major Overhaul to BC Civil Rules As of July 1, 2010

There are major changes coming to the landscape of Civil Litigation in the BC Supreme Court in the coming year.  Today, the BC Government issued a press release advising of a complete overhaul of the BC Supreme Court rules effective July 1, 2010.
These new civil rules have been the source of much controversy since the proposed changes were first announced.
Whatever side of the debate you were on these new rules appear to now be a reality and all lawyers (or people who will represent themselves in the BC Supreme Court) have just under one year to get up to speed.  In fact, Part 24 of the new Rules states that proceedings started under the current Supreme Court Rules will be “deemed to be a proceeding started under these Supreme Court Civil Rules‘ meaning that every current BC Supreme Court civil lawsuit that is not disposed of before July 1, 2010 will be under the force of the new rules at that time.
You can click here to access a copy of the new Civil Rules.
As the new BC Supreme Court Civil Rules were just released today in their final form I will need some time to review them to see what changes they contain with respect to the way ICBC Claims and Personal Injury Claims are prosecuted in the BC Supreme Court.  Over the course of the next year I hope to write extensively about these new rules and the way they will affect personal injury litigation.  In the meantime, according the the BC Government’s Press Release, some of the highlights of these new rules are as follows:

Under the new civil and family rules, the Province will provide up to three days of trial time before litigants are required to pay court fees. Current fees start at $156 for a half day or less. To encourage the use of mediation, court fees for filing or responding to a legal claim will be eliminated for parties that engage in mediation prior to commencing a civil action.

Additional reforms include changes to rules used by B.C.’s civil courts to speed up, simplify and lower the cost of resolving disputes. These include:

· Containing legal processes so that they are proportionate to the value, importance and complexity of the case.

· Allowing parties the option of having a judge set time limits on litigation events.

· Providing a new fast track process that greatly simplifies procedures when the amount in dispute is $100,000 or less or when the case can be tried in three days or less.

· Providing new family rules for minimizing family conflict, promoting co-operation and ensuring that the interests of children are paramount.

$85,000 Non-Pecuniary Damages Awarded in TOS Case

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released today (Cimino v. Kwit) by the BC Supreme Court, New Westminster Registry, awarding damages for injuries and loss as a result of a 2006 BC rear end car crash.
One of the main issues at trial was whether the Plaintiff suffered from Thoracic Outlet Syndrome (TOS) as a result of the crash.  Madam Justice Dillon found that the Plaintiff indeed suffered a traumatic TOS as a result of this crash and in assessing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) summarized the Plaintiff’s injuries and effects on her life as follows:
[42] I accept that the plaintiff has and continues to suffer from thoracic outlet syndrome as a result of the accident and that the plaintiff’s ongoing symptoms related to pain in the right arm and hand relate to this syndrome. Whether the effect of this condition is small, as concluded by Dr. Keyes, or so significant as to disable the plaintiff from work as a certified dental assistant, as stated by Dr. Salvian, can best be determined by inclusion of considerations of the plaintiff’s daily need for significant pain medication, her work history since the accident, and the opinion of the vocation consultant that the plaintiff is competitively employable as a dental assistant, with subtle relatively mild limitations. On balance, I conclude that the plaintiff has permanent ongoing disability of such a significant degree as to require her to take daily multiple pain medications in order to achieve personal and work functionality. Surgery for her condition is not an option. The plaintiff has difficulty sleeping after a bad day, a situation that accumulates as the work days progress with continued use of the plaintiff’s dominant right arm and hand…

[46]         In this case, the plaintiff has demonstrated that she is able to work and participate is some recreational activities and family life. However, the culture within the family changed dramatically after the accident as the plaintiff could no longer perform all of the household activities and her sons and husband took on new roles. She suffers from thoracic outlet syndrome as a result of the accident, but does not have other recurring problems from the accident. This distinguishes her from cases where the gravamen of multiple injuries along with the syndrome results in the highest awards. While the plaintiff has certainly suffered loss of enjoyment of life, emotional suffering, and must face the daunting prospect of permanent daily pain, she has not lost the ability to work or her basic lifestyle.

[47]         Non-pecuniary damages are awarded in the amount of $85,000.

BC Supreme Court Calls LVI Defence a "Myth"

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

Reasons for judgement were released today dealing with a Low Velocity Impact (LVI).  ICBC, like many insurance companies, has set up a policy with respect to handling LVI Claims by denying that the Plaintiff could have sustained injuries where little vehicle damage occurred.
BC Courts have time and time again rejected such a position and in reasons for judgement released today by Mr. Justice Macaulay of the BC Supreme Court called out the LVI defence as a ‘myth’.
In today’s case (Thomas v.  Wormsley) The Plaintiff suffered mild to moderate soft tissue injuries in 2 rear-end car crashes.  The court awarded total damages of just over $30,000 for the Plaintiff’s injuries and losses.  In doing so, Mr. Justice Macaulay used the following strong language when referring to the defence often used by ICBC in response to Low Velocity Impacts:

[1] The plaintiff, Ms. Thomas, claims damages for injuries and losses caused by two car accidents, the first on October 3, 2005, and the second on October 13, 2007. According to Ms. Thomas, she suffered soft tissue injuries to her neck, shoulders and low back areas in each accident and was not fully recovered from the first accident at the time of the second.

[2] In each case, Ms. Thomas was at the wheel of her car in a stopped position when she was hit from behind by another vehicle. Both collisions occurred at minimal speeds. There was no damage to Ms. Thomas’ car in the first collision and minimal damage in the second. Nonetheless, as I and other judges have stated before, it is a myth to suggest that low impact correlates directly with lack of compensable injury: Lubick v. Mei, 2008 BCSC 555, at para. 5 and Jezdic v. Danielisz, 2008 BCSC 1863, at paras. 30 and 33.

[3] Persistent pain and discomfort may result from soft tissue injuries in such circumstances. Each case depends, of course, on the particular facts. There may be no injury in spite of a very severe impact or persistent injury after a minimal impact. While common sense suggests that one is less likely to be severely injured in a minimal impact collision, the real question is whether the injured party proved the injuries alleged to be caused by the collision on a balance of probabilities.

The Important Role of Treating Doctors in BC Personal Injury Claims

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

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back?handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

Rule 37B and the Significance of Insurance

Written by admin on . Posted in BC Supreme Court Costs Cases, Civil Procedure. 49 Comments on Rule 37B and the Significance of Insurance

(Please note the case discussed in this post was upheld by the BC Court of Appeal in June, 2010.  You can click here to read my post discussing the BCCA decision)
When a party beats a formal settlement offer at trial in the BC Supreme Court the existence of the offer can be brought to the courts attention and the Court can then award or deprive a party of Costs as permitted under Rule 37B.
In determining costs consequences Courts have discretion and are to consider various factors as set out in Rule 37B(6).  One of these factors requires the court to consider ‘the relative financial circumstances of the parties‘.  One of the matters still being worked out by BC Courts under Rule 37B is whether a party being insured is a relevant factor when weighing the financial circumstances of the parties.
Today reasons for judgement were released by the BC Supreme Court, Chilliwack Registry addressing this matter.  In today’s case (Smith v. Tedford) the Plaintiff made a settlement offer.  The defendant did not immediately accept and proceeded to trial.  Several days into trial the Defendant accepted the offer.  At issue was what costs the Defendant should pay the Plaintiff.
The Defendant was apparently insured with ICBC.  In arguing what costs consequences should follow the Defendant submitted that the fact insurance was in place was not a relevant consideration.  In asking the court to consider the ‘relevant financial circumstances of the parties‘ the defendant put forward an affidavit setting out her ‘modest circumstances‘.
Mr. Justice Grist rejected this argument and held that the existence of insurance was relevant and could properly be considered by the Court.  Specifically Mr. Justice Grist reasoned as follows:

[14]         Here, I think the consideration stipulated in Rule 37B(6)(c), “the relative financial circumstances of the parties,” also has a bearing. The plaintiff has very limited financial resources and the personal defendant had the advantage of a defence conducted by her automobile insurer. This fact should not constantly put the defence at a disadvantage on costs but, in my view, it is particularly relevant when a late acceptance of an outstanding offer has required the plaintiff to submit to a less certain and potentially prohibitively costly mode of trial.

[15]         Counsel for the defence argues that insurer’s conduct of the case is not a relevant feature and cites Bailey v. Jang, [2008] B.C.J. No. 1952, in this regard. In Bailey the court held that the fact a defendant’s case was conducted by the defendant’s insurer was irrelevant to the Rule 37B(6)(c) consideration of relative financial circumstances. Almost contemporaneous to this decision, however, the issue was independently considered in Radke v. Parry, [2008] B.C.J. No. 1991. In the Radke case, the court awarded the plaintiff double costs for a trial ultimately settled by the exchange of a further plaintiff’s offer and the defendants’ acceptance of the offer, in circumstances where the plaintiff had earlier made a much more modest initial offer. The relevant comment (at para. 42) was as follows:

…The defendants, represented by ICBC, had substantially greater resources to finance a trial than the individual plaintiff. Had the defendants accepted the plaintiff’s initial reasonable offer, the plaintiff would not have had to incur the significant costs associated with nearly two weeks of trial.

[16]         I choose to follow Radke in this regard. The ability to have a case advanced by experienced and well funded counsel is, to my mind, a resource that should be taken into account in exercising the judicial discretion stipulated under the new Rule. As an example of how the obvious intent of the Rule can be perverted if the consideration is made independent of insurance coverage, here counsel for the defendant produced an affidavit speaking of her modest circumstances. She, like the plaintiff, is a young person employed at near minimum wage. This was particularly hard to accept as a relevant consideration after the 6-day course of this abbreviated trial, during which the Insurance Corporation twice had separate counsel appear to argue issues that might easily have been dealt with by the two trial counsel appearing on the defendants’ behalf.

[17]         The appropriate order of costs is to award costs of the action to the plaintiff with the cost of the trial to be assessed as double costs, all at Scale B.

It appears that this interpretation may be gaining favor with BC Courts and hopefully this trend continues.  As always I will continue to report on these cases as they come to my attention.

ICBC Soft Tissue Injury Claims Round-up

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

On Friday the  BC Supreme Court released reasons for judgement in 2 cases dealing with soft tissue injuries which I summarize below to continue to grow this free database of ICBC Injury Claims Judgements. Additionally, both of these cases contain a useful analysis of Plaintiff credibiilty and are worth reviewing for anyone interested in this area of the law.
In the first case, Skusek v. Gill, the Plaintiff was injured in 2 BC car crashes, the first in 2000 and the second in 2006.  Liability was admitted in both cases leaving the court to deal with quantum of damages (the value of the plaintiffs injuries and losses).
The Plaintiff was 22 years old by the time of trial.  She suffered various soft tissue injuries in both collisions which did not fully resolve.  Mr. Justice McEwan of the BC Supreme Court largely accepted the evidence of Dr. Ames who summarized the Plaintiff’s injuries as follows:

[20] The plaintiff saw Dr. Janet Ames on August 22, 2007.  Dr. Ames took a history which suggested significant ongoing pain from the first accident which was seriously aggravated by the second:

After the first accident on January 12, 2000 the symptoms included headaches, neck pain, lower back pain, pain between the shoulder blades and bilateral hip pain.  She commented her entire back hurts.  At the time of the second accident she was still going for chiropractor treatment and physiotherapy.  The patient would place her recovery at about 50 percent before the second accident.

After the second accident the patient describes becoming a lot worse in all of the previously symptomatic areas and specifically the right hip became worse.  There were bruises from the seat belt.  The left anterior ribs felt “out of place” (later resolved with chiropractor care).

[21] She note the following symptoms on her examination:

1. There is pain across the low back, left greater the right.  The pain does not consistently radiate down the legs.  There is occasional pain down both anterior thighs not going past mid thigh.  There is no tingling or numbness associated with this.  There is no history of bowel or bladder control problems.  The patient describes pain in the area of the right hip and points to the lateral aspect of the hip.

2. There is pain in the mid back area, left worse than right.  This does not radiate around the chest or through to the front.  There is no history of tingling or numbness.

3. There is a history of headaches described as frontal, temporal and from neck tension.  The frequency and severity varies.  There is no pain down the arms and no tingling or numbness.  Caffeine intake is 1 c. of coffee or tea every two or three weeks and chocolate about twice a week.  The patient will be seeing a Neurologist in February 2009, arranged by Harris Johnsen.

4. The patient comments that she has a lot of stomach aches daily.

5. Sleep varies depending on the pain level.

[22] The prognosis was as follows:

The prognosis for the various injuries is good as there are no clinical findings consistent with a serious injury.  This excludes the problem with the headaches.  The patient will be assessed by a Neurologist who will comment on the diagnosis and prognosis with regards to the headaches.

Determining when the symptoms will come under good control and/or resolve is very difficult.  The patient may benefit considerably from low dose Amitriptyline to improve sleep and a consistent core stability/strengthening program with one or one supervision.  The supervision from a Pilates instructor would continue until she was on a full program and was aware of how to progress the exercises.  This usually takes about eight sessions over eight weeks.  The patient then graduates to doing the exercises on their own or joining a small group.

Damages of $50,000 were awarded for the Plaintiffs non-pecuniary loss (money for pain and suffeirng and loss of enjoyment of life) and $60,000 was awarded for the young Plaintiff’s diminished earning capacity.

Paragraphs 41-48 of this judgement are worth reviewing for anyone interested in some of the factors courts look at when weighing a Plaintiff’s credibility in soft tissue injury cases.

In the second soft tissue injury case released on Friday (Mohamadi v. Tremblay) the Plaintiff was awarded $10,000 for non-pecuniary damages as a result of injuries sustained in a 2006 BC car crash.   In valuing the Plaintiff’s injuries at this modest figure Mr. Justice Truscott of the BC Supreme Court summarized the injuries as follows:

[91] It is extremely difficult to determine the value of the plaintiff’s claims with all of the inconsistent evidence he has given and the lack of supporting evidence from his doctors.

[92] I do accept that in the motor vehicle accident of February 14, 2006 the plaintiff sustained soft tissue injuries to his neck, back and left shoulder, accompanied by headaches.

[93] I am prepared to accept that his soft tissue injuries lingered on for a period in the order of two years on a mild basis but thereafter I conclude that he had recovered with no long term consequences.

[94] I accept that his headaches lasted for a short period of time but thereafter this complaint is not supported by his physicians and I reject his evidence that his headaches continued thereafter.

This case is also worth reviewing for the court’s discussion of plaintiff credibility in soft tissue injury claims.  Many of the Plaintiff’s claims were rejected by the Court.   Specifically in paragraphs 95-113 the court gives reasons for rejecting many of the Plaintiff’s claims and these paragraphs contain a useful discussion for anyone interested in some of the factors courts consider important when weighing credibility in ICBC Injury Claims.

$104,500 Non-Pecuniary Damages Awarded for TOS

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, ICBC Wage Loss, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry (Hooper v. Nair) awarding damages for a 2003 motor vehicle collision.
The Plaintiff was struck while walking lawfully in a marked crosswalk in Burnaby, BC.  She suffered various injuries including Thoracic Outlet Syndrome (TOS).
Madam Justice Russell awarded the Plaintiff $104,500 for her non-pecuniary damages.  In valuing the plaintiffs pain and suffering the Court summarized the Plaintiff’s injuries and their effects on her life as follows:

[50] There are a number of factors that affect the plaintiff’s entitlement to non-pecuniary damages.  With respect to the duration of the pain, the plaintiff’s pain has become chronic in nature.  She continues to experience pain particularly in her neck, left shoulder and arm nearly six years since the onset of symptoms. The chronic nature of her pain means that she will have to deal with and manage the pain from her underlying TOS for the foreseeable future.  She has tried many different modalities of treatment with limited success.  There is some improvement but the pain is still present.  Further, the injuries led to the development of sleeping problems which cause the plaintiff to feel tired in the morning.   She can hope for some improvement over time with a regular exercise programme.  But overall, the prognosis for a full recovery is unclear and it appears that she will continue to be affected by the injuries indefinitely and will likely have to live, at a minimum, with background pain.

[51] The plaintiff’s lifestyle has been adversely affected in a number of ways.  She is determined to resume her jogging programme and to re-enter the Sun Run with her husband.  However, her early attempts to run resulted in a flare-up of neck and back pain.  Drs. Travlos and Salvian suggest that jogging may not be an activity she can do.  Dr. Travlos states she will have to pre-medicate for any activity which causes an exacerbation of her back pain.  Certainly golfing, an activity she enjoyed, will not be an activity she can participate in without pain.

[52] Both doctors also point out that the plaintiff is susceptible to further episodes of TOS should she have any increased neck injury or strain.  Dr. Salvian says that such increased neck strain could be caused by something as simple as “sleeping in a poor position or driving for long periods”.

[53] The plaintiff’s professional life was impacted by the Accident.  She has been able to cope fairly well with the duties of her job by minimizing the use of her left arm.  Luckily, she is right hand dominant.  But her evidence was clear that she maintained the earnings she had only by pushing through the pain and carrying on as best she could.  She gave evidence of struggling to carry on, taking her work home because she could not sit any longer in her office, and feeling tired and overwhelmed.  Because of her pain and fatigue, she believes she could not “court” clients as effectively at a time in her career when she was in a start-up mode and needed to do so.

[54] The Accident also caused emotional difficulties for the plaintiff which were no doubt situational and due to the chronic pain and resulting fatigue.  Fortunately, these problems have not continued and she appears to be coping well at this point.

[55] The plaintiff’s relationship with her husband was in some difficulty due to his business problems and their financial crises prior to the Accident but had improved by October 2005.  Mr. Hooper stated that her sleep difficulties meant she would often leave the marital bed and their relationship was negatively affected.  However, the plaintiff’s evidence about the effect of her injuries on her marital relations with her husband was not as clear.  But I accept his evidence that the plaintiff was irritable, fatigued and distant after the Accident and that her frustration with the slow progress of her recovery affected the happiness of the household.

[56] At the time of the Accident in December 2003, the plaintiff’s son was six years old.  She enjoyed skating with him.  She was not able to take part in active sports with him after the Accident and even cuddling him was painful for her for some time following the Accident.

[57] The plaintiff faced the difficulty of juggling many activities in her busy life:  she had a job which required time and concentration and some extra activities she needed to do as part of her marketing, she was the chief breadwinner for the family, and she had a young son at home and a house to care for.  Even before the Accident she was very busy but with the overlay of pain caused by the Accident, the plaintiff could not keep up her usual standard of housekeeping.  She relied on her older son and her husband to help but this was not always successful and caused friction in the family.  Vacuuming caused her intense pain as did reaching up to dust or clean above her shoulder.  This remains the case today.  She cannot vacuum, wash windows, or dust high corners.

[58] While Dr. Travlos suggests she use Noritryptiline to pre-medicate if she wants to do housework which would otherwise cause her pain, this is not always a practical solution and I accept that her inability to do housework has an impact on her life.

In addition to this case’s value as a precedent in Thoracic Outlet Syndrome cases the court discusses the thin skull and crumbling skull legal principles at paragraphs 59-66 and contains a very useful discussion of claims for past wage loss for commissioned sales-persons who are injured but not totally disabled as a result of accident related injuries.

2008 Lawyer and Doctor ICBC Billings Revealed

Written by admin on . Posted in Uncategorized.

Further to my previous posts on this topic (click here and here to read these) ICBC has now published their ‘statements and schedules of financial information’ for 2008 which reveals, amongst other things, the amount of money ICBC has paid to ‘suppliers for goods and services for the year ended December 31, 2008.’
Suppliers of Goods and Services include doctors who perform ‘independent’ medical exams for ICBC.   When ICBC sends and injured person to an independent medical exam these financial statements can be checked to see just how much money any given physician was paid by ICBC in a calendar year.
Another provider of ‘services’ revealed in these financial statements are law firms who do ICBC defence work. I have previously posted that some lawfirms and lawyers work both sides of the fence, that is on some cases they work for ICBC and in other cases they work for injured plaintiff’s suing someone insured by ICBC. According to the BC Law Society there is nothing wrong with this but these lawyers need to let their clients know if they signed the ICBC defence contract (known as the SAA) which restricts the lawyers ability to make claims against ICBC.  This is required so clients can make an informed decision when choosing to hire their lawyer.
If you hired a lawyer to advance your ICBC injury claim and are curious if your lawyer also works for ICBC you can check these annual reports to see just how much money any given lawfirm is paid by ICBC in each calendar year.