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The Disclosure Conflict: Civil vs. Criminal Law

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

When a person at fault for a car crash is sued by the innocent victims and at the same time faces criminal charges as a result of the accident competing needs for records disclosure arise.
In the course of the criminal defence trial Canadian law requires disclosure of the facts the prosecution has gathered against the accused.  This information can be very useful to the Plaintiff in the civil suit against the at-fault motorist.  Is the Plaintiff advancing a Civil Injury Claim entitled to this disclosure or does the law limit this disclosure until the criminal trial concludes?
Reasons for judgement were released today by the BC Court of Appeal addressing disclosure rights when there are competing criminal and civil interests.
In today’s case (Wong v. Antunes) the Plaintiff’s son was struck and killed by a motor vehicle in 2005.  A civil lawsuit was started against the alleged driver Mr. Antunes.  At the same time the alleged driver was charged with ‘criminal negligence causing death’.
In the course of the criminal prosecution the Defendant was provided disclosure by Crown Counsel as required by Canadian law.   He refused to provide these documents to the Plaintiff in the civil lawsuit.  The Plaintiff brought a motion for production and largely succeeded.
The Attorney General for BC, the creator of the records, appealed this order. In allowing the appeal and in modifying the terms under which a civil litigant is entitled to disclosure of records produced in the prosecution of a criminal offence, the BC Court of Appeal held as follows:

[18] The case at bar is complicated, first, by Mr. Antunes’ refusal to even list the VPD documents as being in his possession and, second, by the Crown’s concern that some of the documents or information may jeopardize the on-going criminal proceedings.

[19] The chambers judge was alive to the problems associated with disclosure of the VPD documents.  It appears that he intended to adopt the approach to disclosure approved by the Ontario Court of Appeal in D.P. v. Wagg (2004), 239 D.L.R. (4th) 501, 71 O.R. (3d) 229, 184 C.C.C. (3d) 321 [“Wagg” cited to D.L.R.].

[20] Wagg bears some resemblance to the case before us.  It too concerned the right of a plaintiff to disclosure and production of documents in the possession of the defendant that the defendant obtained as a result of the disclosure process in criminal proceedings brought against the defendant.  In particular, the plaintiff was interested in obtaining statements given by the defendant to the police which the trial judge in the criminal proceedings had ruled as inadmissible because the statements were held to be obtained in violation of his Charter rights.

[21] The Ontario Court of Appeal ultimately endorsed the screening process formulated in the Divisional Court, holding, at para. 48-49:

Like the Divisional Court, I can see no practical way of protecting the interests discussed by that court and by the House of Lords in Taylor without giving the bodies responsible for creating the disclosure, the Crown and the police, notice that production is sought.  Further, where the Crown or police resist production the court must be the final arbiter.

I do not think that the various interests will be protected because of the implied undertaking rule in Rule 30.1.  The fact that civil counsel obtaining production is bound not to use the information for a collateral purpose may be little comfort for persons who once again find their privacy invaded, this time in civil rather than criminal proceedings.  Further, the Stinchcombe obligation on the police and Crown is very broad.  Subject to privilege the Crown must disclose all relevant information.  If there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, the information must be disclosed.  Crown counsel are urged in Stinchcombe at p. 339 to err on the side of inclusion and refuse to disclose only that which is clearly irrelevant.  The courts ought not to apply the discovery rules in civil cases in a way that could have an unintended chilling effect on Crown counsel’s disclosure obligations.

[22] The screening mechanism devised by the Divisional Court was summarized (and endorsed) by the Court of Appeal as follows, at para. 17:

· the party in possession or control of the Crown brief must disclose its existence in the party’s affidavit of documents and describe in general terms the nature of its contents;

· the party should object to produce the documents in the Crown brief until the appropriate state authorities have been notified, namely the Attorney General and the relevant police service, and either those agencies and the parties have consented to production, or on notice to the Attorney General and the police service and the parties, the Superior Court of Justice has determined whether any or all of the contents should be produced;

· the judge hearing the motion for production will consider whether some of the documents are subject to privilege or public interest immunity and generally whether “there is a prevailing social value and public interest in non-disclosure in the particular case that overrides the public interest in promoting the administration of justice though full access of litigants to relevant information” (para. 51).

[23] The Attorney General identifies a number of practical problems created by the impugned order.  The Stinchcombe package is assembled by the Crown, not the VPD.  The order, as it currently reads, requires the VPD to produce documents, despite the fact that it will not know whether these documents were part of the Stinchcombe package.  More importantly, the Attorney General maintains it is cumbersome in that it contemplates all documents being produced, subject to the police or Crown specifying why a particular document is not required to be produced.  Further, the order contemplates that the Crown must assert public interest immunity on a document by document basis.  The difficulty posed by effectively ordering disclosure of theStinchcombe package is that it fails to recognize that the disclosure under Stinchcombe serves a different purpose than disclosure in the civil context, and that to meld the two is an unfortunate development in the law.  Further, by failing to incorporate the public interest immunity claimed by the Crown in the order, it creates opportunities for unforeseen negative consequences.

[24] The preferable alternative, according to the Attorney General, is for the making of a desk order which recognizes the public interest in maintaining the confidentiality of police — Crown communications as a class, and leaving the parties with liberty to apply as to whether particular documents, or the whole class, should be disclosed in a particular case.

[25] In my opinion, the mischief identified by the Attorney General in the application of the impugned order, namely unfortunate unforeseen consequences that may impair the criminal proceedings, can be rectified by the form of order suggested by the Attorney General, which reads as follows:

ON THE APPLICATION of the [party], without a hearing and by consent;

THIS COURT ORDERS THAT:

1.         the [Chief Constable of municipal police force] [Officer in Charge or the Non-Commissioned Officer in Charge of the location Detachment of the Royal Canadian Mounted Police], or his delegate (“the Police”) be authorized and directed to, within 35 days of receipt of a copy of this Order, find all documents as defined in the Supreme Court Rules, including all handwritten notes of all investigating officers, in the possession or control of the Police relating to [incident] (“the Incident”) and in particular file number [file number];

2.         the Police shall examine the said documents when found, and determine which documents or portions of documents may not be produced because they are:

(a)  any correspondence or communications between the Police and Crown Counsel, or between the Police and solicitors advising them, for the purpose of giving or receiving legal advice;

(b)  documents which it would be contrary to the public interest to produce, and in particular documents which if disclosed:

(i)  could reveal correspondence or communications between the Police and Crown Counsel other than those referred to in subparagraph (a);

(ii)  could prejudice the conduct of a criminal prosecution which is anticipated or has been commenced but not finally concluded, where the dominant purpose for the creation of the documents is that prosecution (not including reports, photographs, videotapes or other records of or relating to the Incident created by or for the Police on their attendance at the scene of the Incident or as a contemporaneous record of such attendance);

(iii)  could harm an ongoing statutory investigation or ongoing internal Police investigation;

(iv)  could reveal the identity of a confidential human source or compromises the safety or security of the source;

(v)  could reveal sensitive police investigation techniques; or

(vi)  could harm international relations, national defence or security or federal provincial relations;

(c)  protected from production by the Youth Criminal Justice Act (Canada), or by any other applicable statute;

3.         the Police shall copy the documents which satisfy the criteria for production referred to in paragraph 2 or such portions of the documents as satisfy the criteria for production referred to in paragraph 2;

4.         the Police shall make the copies available to the solicitor for the Applicant for inspection or collection at [address];

5.         the solicitor for the Applicant shall forthwith enter this Order and deliver a copy to the Police and the solicitors for the parties herein;

6.         any reasonable costs incurred by the Police for the retrieval, production, inspection, copying and delivery of the said documents shall be paid forthwith by the solicitor for the party requesting such retrieval, production, inspection and delivery of the said records;

7.         within seven days after receipt by the solicitor for the Applicant of the said documents from the Police pursuant to this Order, such solicitor shall provide each of the solicitors for the parties herein with a copy thereof and the solicitors for the parties herein shall be at liberty to examine the copies of the documents received by the solicitor for the Applicant from the Police;

8.         any party, the Police and the Attorney General of British Columbia, shall have liberty to apply to the Court to determine which, if any, documents are required to be produced pursuant to this order.

[26] In my opinion, the form of order suggested by the Attorney General balances the plaintiff’s need to obtain information in the police file with the Crown’s need to preserve the integrity of the criminal prosecution.  Further, it permits, in the appropriate case, full debate on the various privilege issues that may arise.

IV.        DISPOSITION

[27] It follows that I would allow the appeal and direct that an order in the form referred to above be entered.

More on BC Personal Injury Law and the Duty to Mitigate

Written by admin on . Posted in Civil Procedure, ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC PTSD Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

A plaintiff who fails to take reasonable steps to minimize their losses and injuries after a car accident risks having their claim reduced accordingly for this ‘failure to mitigate’.
I’ve written about this before and reasons for judgement were released today by the BC Supreme Court demonstrating this principle in action.
In today’s case (Latuszek v. Bel-Air Taxi 1992 Ltd.) the Plaintiff was involved in a serious intersection crash in the lower mainland.  The Defendant died in the collision and the Plaintiff suffered serious injuries.
These injuries included Depression, PTSD and Chronic Pain.  The Court valued the non-pecuniary damages (pain and suffering) for these injuries at $100,000 but then reduced the award by $40,000 due to the plaintiff’s failure to mitigate.
Madam Justice Stromberg-Stein summarized and applied the law as follows:

[84] Prior to setting non-pecuniary damages, I will address the duty to mitigate.

[85] There is a duty at law to take reasonable steps to minimize your loss, particularly where, as here, conservative treatments have been recommended.  Because of the nature of the plaintiff’s work, as a professional driver transporting fuel, he has limited his medication to Tylenol Extra Strength or Tylenol 8 Hour.  Dr. Jaworski recommended exercises in the pool and gym and brisk walking.  Mr. Latuszek says he swam once in a while, but he did not go to the gym or do brisk walking.  Dr. Jaworski suggested that brisk walking may be contraindicated now that he knows that Mr. Latuszek has a torn medial meniscus.  Mr. Latuszek does very little regular exercise of any kind, except once or twice a week.  He did not try yoga, massage therapy, relaxation therapy or the medications as recommended by his psychiatrist.  He has not taken holidays in the past two years to try the anti?depressant medication, yet he understands that such medication as well as exercise, may improve, if not cure, his symptoms.  The plaintiff has not prioritized his recovery.

[86] In light of the authorities presented by the parties, I conclude that general damages, having regard to the injuries suffered by Mr. Latuszek and the continued problems in that regard, including depression, PTSD, and chronic pain, should be set at $100,000.  There will be a reduction of $40,000 for failure to mitigate.  Therefore, I award $60,000 as general damages.

More on ICBC Claims, Trials and Costs

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

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10) A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?
Reasons for judgement were released today further dealing with this issue.  In today’s case (Bagasbas v. Atwal) the Plaintiff brought an injury claim in the BC Supreme Court.  At trial the Plaintiff’s evidence was contradicted by photos that she had posted on her Facebook account.   The result was a finding that the Plaintiff suffered rather minimal injuries that were valued at $3,500 by the trial judge.
The trial judge was then asked to determine whether the Plaintiff should be awarded ‘costs’ which would depend on whether she had ‘sufficient reason for bringing the proceeding in the Supreme Court.’  Madam Justice Satanove held that the plaintiff did not have sufficient reason and in coming to this decision said the following about a litigants obligation to fully inform treating physicians and lawyers of pertinent facts:

[5] Plaintiff’s counsel in the case at bar has filed an affidavit from the plaintiff’s solicitor of record setting out the state of affairs that existed at the time the plaintiff asked him to initiate the action.  This solicitor relied primarily on a medical?legal report requisitioned by him from the plaintiff’s general practitioner, Dr. Ladhani.  Dr. Ladhani’s report dated February 8, 2008, concluded that subsequent to the accident, the plaintiff developed pain in her neck, upper and lower back areas, as well as her right hip area.  He found she had made slow but steady progress over the last 20 months but that she continued to have some pain in the upper and lower back areas, as well as her right hip.  He anticipated that the plaintiff would continue to improve over the next few months but if her condition did not improve, he may have to order a CAT scan of her lower back.

[6] Let me pause at this juncture and say that I find it eminently reasonable for counsel faced with a medical-legal report of this nature to commence an action in Supreme Court as opposed to Provincial Court.  The prognosis was unclear and further radiography was required.  Later, a CAT scan showed the plaintiff to have a herniated disk but as I have said, the plaintiff did not claim that this was due to the accident.

[7] The difficulty that arises which has caused the parties to appear before me is that on cross-examination of Dr. Ladhani at trial, it became apparent that the plaintiff had not been fully forthright with her doctor.  From the date of the accident to September 2, 2006, she advised Dr. Ladhani that she continued to get pain in the right side of her neck and upper back and lateral movements of these areas produced discomfort.  Later, in subsequent visits, she complained of pain in her lower back, tenderness in her spine, difficulty wearing high heels, inability to run or kayak or jog and the other matters which are itemized in Dr. Ladhani’s report.  She did not tell him that between June and September 2006, she had taken a camping trip to the United States, had attended her Filipino dance rehearsals regularly, had flown to Antwerp, Belgium for two weeks where she participated in dance performances and after-hours celebrations.  Dr. Ladhani seemed surprised to see the many photographs shown him by defence counsel which photographs depicted the plaintiff in quite intricate dance manoeuvres, sometimes in high heels looking comfortable and smiling.  The plaintiff also did not tell Dr. Ladhani of her ongoing activities after September 2006, including such things as a trip to Cancun, to Hawaii and further dance appearances in Kamloops, Victoria and other places.

[8] Dr. Ladhani was not asked if knowing of these facts in February 8, 2008, would have changed his opinion at that date but it certainly reduced the weight I gave to his opinion.

[9] In my view, a plaintiff who does not fully inform his or her treating physician and legal counsel of the pertinent facts at the time medical or legal advice is sought runs the risk of receiving inaccurate or erroneous advice through no fault of the professional advisors.  If all the evidence I heard at trial about the plaintiff’s condition before February 8, 2008, had been in the possession of counsel at the time he commenced the action, I expect he would have advised the plaintiff to start an action in Small Claims Court where this case belongs.

[10] The onus is on the plaintiff under Rule 57(10) to establish sufficient reason for bringing the proceeding in Supreme Court and I find that she has not done so.  In no way is her counsel to blame.  This regrettable outcome for the plaintiff lies at her feet alone.  Therefore, the plaintiff is not entitled to costs other than her disbursements.

Expert Evidence and Litigation Privilege

Written by admin on . Posted in Civil Procedure, Uncategorized. 2 Comments on Expert Evidence and Litigation Privilege

It is common for lawyers involved in personal injury claims to retain the services of expert witnesses.  The most common expert witnesses are medical doctors but often engineers, economists, and other specialists are brought into the fray.
Experts are typically retained to be involved in two common roles.  The first role is to provide expert opinions to assist the judge or jury to understand the evidence called at trial.  The second is to assist counsel in preparing the case for trial.  When experts are retained to assist counsel to prepare for trial the communications between the expert and the lawyer are confidential and subject to litigation privilege.
When an expert takes the stand and gives opinion evidence they are subject to a cross-examination that is quite wide in scope.  Does this permit the opposing side to ask questions about the confidential opinions and advice the expert gave the lawyer that retained him prior to trial?  Not necessarily.  Reasons for judgement were transcribed today by the BC Supreme Court, Vancouver Registry, dealing with this issue.
In today’s case (McLaren v. Rice) the Defendants to a car accident claim hired an engineer who was qualified to give expert opinion evidence regarding accident reconstruction and speed and speed changes.  During cross examination the lawyer for the Plaintiff asked whether the defence lawyer sought his opinion with respect to a vehicle’s tie-rod and ball-joint assembly.  The Defence lawyer objected to the question claiming it addressed matters that were protected by litigation privilege.  Mr. Justice Brooke upheld the objection and in doing so summarized and applied the law as follows:

[4] In the recent decision of Madam Justice Satanove in Lax Kw’alaams, 2007 BCSC 909, the nature and extent of litigation privilege was considered.  At paragraph 9, Justice Satanove referred to the decision in Delgamuukw where it was said that litigation privilege was waived when the expert witness was called, but that that waiver was to be narrowly construed and privilege maintained when it was fair to do so.

[5] In Vancouver Community College v. Phillips, Barratt (1987), 20 B.C.L.R. (2d) at 289 (S.C.), Justice Finch, as he then was, recognized that even where an expert is called as a witness he may remain a confidential advisor to the party who called him at least in regard to advising on cross-examination of the other side’s witnesses, including the other side’s expert witnesses.

[6] In Lax Kw’alaams as well as in Barratt, the issue was the production and cross-examination on documents that had been prepared by the witness.  As I understand it, here all privileged documents are set out in part 3 of the document disclosure of the defendant and there is no suggestion that there are undisclosed documents.

[7] What the plaintiff wishes to cross-examine upon is not documents, but oral advice or opinions or commentary concerning the tie-rod assembly and ball joint, an area which the report of Mr. Brown does not pretend to address.

[8] I find, if Mr. Brown was asked questions out of court regarding the tie-rod and ball-joint assembly it was to assist the defendant in its defence of the plaintiff’s claim and specifically the allegation that the collapse of the tie-rod and ball-joint assembly caused the accident in which the plaintiff sustained devastating injuries.

[9] In my opinion, it would not be fair to require Mr. Brown to answer questions directed to matters outside the scope of his report because it could give the plaintiff an advantage not available to the defendant.  Here I refer to paragraph 29 of Barratt.  Moreover, to permit such cross-examination would cast a chill over the ability of counsel for both plaintiffs and defendants to properly prepare their client’s case and also to answer the other party’s case.  In the result, the objection of the defendant is sustained.

Class Proceedings Claim Launched Against UVic For Parking Fines

Written by admin on . Posted in Uncategorized.

(Reposted from my BC Class Action Law Blog) On May 22, 2009 a claim under the BC Class Proceedings Act (a Class Action lawsuit) was filed in the BC Supreme Court (Victoria Registry) against the University of Victoria seeking repayment of  parking fines collected by the Univsersity.
The Claim was filed on behalf of Plaintiff Kayla Christine Cheeke who seeks to have the claim certified on behalf of ‘those individuals who paid fines for parking offences as set out in the University of Victoria Traffic and Parking Regulations from on or about July 1, 1999 to April 9, 2009.’ You can click here to read the Statement of Claim.  In short, the Plaintiff alleges that Parking Fines collected by the University of Victoria (UVic) were collected unlawfully in that the University lacked the power to enact and collect parking fines.
While I normally don’t post about cases that I and my firm are directly involved in, Class Action lawsuits are by definition public and getting the word out to the potential class is essential.
If you or anyone you know paid a parking fine to the University of Victoria, Simon Fraser University (SFU) or the University of Northern BC (UNBC) and are interested in learning more about this claim you can click here to contact me.

ICBC Claims and Multiple 'Independent Medical Exams'

Written by admin on . Posted in Civil Procedure, independent medical exams, Uncategorized. 49 Comments on ICBC Claims and Multiple 'Independent Medical Exams'

As I’ve previously posted, ICBC can typically arrange an ‘independent’ medical exam (IME) in one of two ways.  The first is when an ‘insured’ applies for first party no-fault benefits.  Section 99 of the Insurance (Vehicle) Regulation gives ICBC the power to compel an IME in these circumstances.  The second is under Rule 30 of the BC Supreme Court rules which allows the court to order an independent exam to level the playing field.
As a monopoly insurer ICBC often has one adjuster assigned to look after a person’s claim for no-fault benefits and at the same time look after the defendant’s interests in the Plaintiff’s tort claim.  Often times ICBC will obtain a no-fault benefits medical exam and then once a tort claim is launched seek a second exam with a different physician pursuant to the BC Supreme Court Rules.  Can ICBC do this?  The answer is sometimes yes but is highly factually dependent and reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dealing with such a fact pattern.
In today’s case (Deacon v. Howe) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff and Defendant were insured with ICBC.  The same ICBC adjuster was looking after the Plaintiff’s no-fault benefits claim and acting on behalf of the defendant in the tort claim.  ICBC sent the Plaintiff for an IME with an orthopaedic surgeon (Dr. Pisesky) as part of the no-fault benefits application process.  In the course of the tort claim the Defendant then sought an order sending the Plaintiff for an IME with a physiatrist.  The Plaintiff opposed this motion.  Master Taylor, in dismissing the motion, discussed and applied the law as follows:

[15] The issues I have to determine are:

(1) whether the report of Dr. Pisesky is a report pursuant to Part 7, or whether it is a first IME report based upon the extent and content of the report; and

(2) If the report of Dr. Pisesky is considered a first IME, would the defendants be entitled to seek a further examination pursuant to Rule 30(2).

[16] Madam Justice Dillon considered these very issues in Robertson v. Grist, 2006 BCSC 1245.  In relation to the first issue, she said this at paragraph 14:

Whether the Part 7 examination constitutes a first independent medical examination depends upon the scope of the examination, given the rest of the circumstances here.  There was no limitation on Dr. Jaworski’s examination and the request letter covered matters that would solely be relevant to a tort action.  The doctor’s report was not limited to a rehabilitation opinion about whether the injuries sustained in the accident totally disabled the plaintiff from work within 20 days of the accident and for a period of 104 weeks or less, the criteria in section 80 of the Part 7 benefits Regulations. The examination was a first independent medical examination within the meaning of Rule 30.

[17] There is evidence that this particular claims adjuster was acting in both the Part 7 and tort claim.  At the time of the examination of the plaintiff by Dr. Pisesky on July 16, 2006 the plaintiff was represented by counsel and the writ and statement of claim had been issued and served on ICBC.  Accordingly, I have formed the opinion, following upon the analysis of Dillon, J. that the report of Dr. Pisesky is a first report based on the nature and content of the report.

[18] In relation to whether the defendants would be entitled to a further examination pursuant to Rule 30(2), Dillon, J. said this at paragraph 15:

Should a second independent medical examination be ordered?  The test for a second opinion was recently re-stated by Master Hyslop in Shaw v. Koch (2004), 4 C.P.C. (6th) 271, 2004 BCSC 634 at para. 25 [Shaw], from the decision in Jackson v. Miller, [1999] B.C.J. No. 2751 at para. 12 (S.C.) (QL) [Jackson], to the effect that a second opinion on the same matter cannot be obtained unless something has occurred since the first examination which was not foreseeable or for which could not have been addressed by the examiner on the first occasion.  The defendant has conceded that there are no grounds to justify a second examination. In these circumstances, the second independent medical examination by an overlapping specialty doctor should not be ordered.

[19] In the instant case, the defendants, as earlier indicated, contend that they are entitled to have an IME from a physiatrist in order to put the parties on an equal footing.  The defendants’ argument is that if the plaintiff has the opinion of two physiatrists then the defendants should be entitled to an IME by a physiatrist in order to put the parties on an equal footing.  As well, the defendants have successfully sought an order to have the plaintiff examined by Dr. Solomon, a psychiatrist.  That examination occurred on May 14, 2009.

[20] In Guglielmucci the defendant provided an opinion from a psychiatrist as to the necessity of an IME by a psychiatrist.  In the case at bar no such opinion has been provided for the benefit of the court and no evidence has been provided that there has been a change in the plaintiff’s condition since Dr. Pisesky’s last medical report.  The affidavit of a paralegal was provided by the defendants in which the deponent says at paragraphs 9 and 13:

[9] The plaintiff had attended the IME with Dr. Pisesky at the request of the then handling adjuster, David Burdett, which was arranged under Part 7 of the Regulations with respect to the plaintiff’s application for Part 7 benefits, and prior to defence counsel being retained on or about July 10, 2006.

[13] I have been advised by John Hemmerling, and verily believe to be true, that Dr. Coghlan is his referred choice of medical examiner to conduct an IME of the plaintiff in the tort action due to his expertise in the field of physiatry and the thoroughness of his assessments and his willingness and ability to read and interpret the medical information sent to him in order to form a reasoned opinion for the court and that this IME is required to assess the opinions of Dr. le Nobel and Dr. Vallentyne.

[21] I am of the view that the affidavit of this deponent is of no assistance to the application of the defendants.  As was said by the court in Haleta v. Jehn and Others, 2008 BCSC 1522, “there is nothing new here that has arisen that would give the plaintiff an unfair advantage over the defendant.”

[22] Dr. Pisesky’s report of July 16, 2006 was thorough.  It addressed issues far beyond a basic Part 7 report.  In my view there is no need for a physiatrist to examine the plaintiff, especially in view of the plaintiff’s agreement to be seen and assessed once again by Dr. Pisesky.  Accordingly, the defendants’ application for an IME by Dr. Coghlin is dismissed.

[23] The plaintiff shall have her costs of this application.

More on Car Accident Claims, Complexity and Jury Trials

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

When car accident cases are prosecuted in the usual course (not using Rule 66 or 68) in the BC Supreme Court either side can elect to have trial by jury.
In certain circumstances, however, a jury trial is inappropriate and a court and strike a jury notice.  One of the reasons a court can strike a jury notice is complexity.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this issue.
In today’s case (McIntosh v. Carr) the Plaintiff was involved in 3 car accidents and the parties agreed that all 3 cases were to be heard at the same time.  Fault was not at issue in any of the cases but the alleged injuries were serious and included ‘pain and suffering, shock, brain injury, concussion, physical injuries to the head, neck, back, shoulders and knee, headaches, cuts, loss of sensation in the scalp, depression, anxiety, insomnia, sleep disorder and post-traumatic stress disorder‘.  The case was expected to be complex, take 25 days to hear with over 30 witnesses including 17 professionals testifying.
The Defendants elected trial by Jury.  The Plaintiff’s lawyer brought a motion to dismiss the jury notice claiming that it was too complex.  Mr. Justice Macaulay of the BC Supreme Court granted the Plaintiff”s motion and in doing so summarized and applied the area of the law as follows:

[6]           A 25 day trial requires a significant commitment by jurors. Experience tells us that juries are capable of understanding the expert medical evidence typically heard in cases involving an alleged brain injury but experience also indicates that juries have more difficulty retaining that understanding throughout longer trials. This affects my consideration whether it is convenient for a jury to undertake the medical, or “scientific” investigation required in this case.

[7]           A 25 day trial involving intricate medical, psychological and behavioural issues involving a young person who was not yet fully developed at the material time, presents such a risk. That risk is compounded by a number of complications that the evidence must address. Taken together, these factors also render the issues too complex for a jury.

[8]           It is now about ten years post-accidents. Over that period, the plaintiff has undergone extensive treatment and a variety of testing including cognitive or psychological testing. The outcome of testing as it relates to the diagnosis or proof otherwise of the alleged brain injury is complicated by factors such as the identification and effect of a pre-existing learning disability as well as other social, scholastic and family stressors already present in the plaintiff’s life before the accidents. There are live issues as to whether these factors explain or at least materially contributed to the plaintiff’s ongoing difficulties. The factors also impact the application of any expert evidence respecting future pecuniary losses.

[9]           The defendants contend that the evidence is not too complicated for a jury. They point out that the court refused to strike the jury notice in Forde v. Interior Health Authority (c.o.b. Royal Inland Hospital), 2009 BCSC 254, a medical negligence claim involving 19 experts and 26 detailed expert reports and summaries of evidence. The medical evidence covered some of the same areas as in the case at bar as well as others, including neurosurgery, radiology, neuroradiology and kinesiology. The trial in that case was scheduled for 15 days. In another case, Furukawa v. Allan, 2007 BCSC 283, the court also declined to strike the jury notice. The plaintiff claimed a brain injury in that case and the trial, as here, was scheduled for 25 days.

[10]        Each case is necessarily fact dependent but the results in Forde and Furukawa may be taken as confirmation that factors such as the length of trial, the extensive number of medical experts and complex medical issues do not automatically remove the right of a party to a trial with a jury.

[11]        For convenience, Rule 39(27) in its entirety reads:

Court may refuse jury trial

(27)      Except in cases of defamation, false imprisonment and malicious prosecution, a party to whom a notice under subrule (26) has been delivered may apply

(a)        within 7 days for an order that the trial or part of it be heard by the court without a jury on the ground that

(i)         the issues require prolonged examination of documents or accounts or a scientific or local investigation which cannot be made conveniently with a jury, or

(ii)        the issues are of an intricate or complex character, or

(b)        at any time for an order that the trial be heard by the court without a jury on the ground that it relates to one of the matters referred to in subrule (25).

[12]        In Furukawa, commencing at para. 10, Dorgan J. summarized the authorities respecting the analysis required under the rule. The court must first determine, as a question of fact, whether the matters at issue at trial will require either a prolonged examination of documents or accounts or a scientific or local investigation. If either answer is yes, the court must consider whether a jury can conveniently make the examination or investigation. Convenience in this sense refers to the ability of the jury to both understand the evidence and retain that understanding throughout the trial. The length of trial may be a factor, albeit not determinative, in addressing the issue of convenience. The court also has discretion to strike the jury notice if the issues are too intricate or complex.

[13]        It is likely in the present case that the plaintiff’s entire life, at least from the start of school through to the time of trial, a period of about 20 years, will be subjected to microscopic expert analysis and comment. That will require the trier of fact to absorb and retain a vast amount of information, some of which is likely to be, at least, nuanced if not complex, with a view to later deciding the issues.

[14]        I am persuaded that this is not an appropriate case for a jury. It would not be convenient, as defined by the authorities, for a jury to undertake the scientific examination required in this case. In any event, the issues are too intricate given their intertwined nature and, in some instances, likely too complex as well.

ICBC Injury Claims, Video Surveillance and Disclosure

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized.

It is not uncommon for insurance companies such as ICBC to conduct video surveillance of plaintiffs involved in injury litigation.  Normally such video evidence is protected by privilege and ICBC does not need to disclose it unless they want to rely on it at trial.  In these circumstances the BC Supreme Court Rules don’t require disclosure until shortly before trial.
What if ICBC shares the evidence with their expert witnesses?  Does this result in a waiver of privilege?  The BC Supreme Court dealt with this issue in 2006 and today reasons for judgement delivered by Mr. Justice Johnston were transcribed and published by the BC Courts website addressing these facts.
In the decision released today (Lanthier v. Volk) the Plaintiff was injured in a motor vehicle collision and was prepared to proceed to trial.  The defence lawyer delivered expert medical reports which relied in part on the facts depicted in video surveillance conducted on behalf of the Defendant.  The Plaintiff asked for disclosure of these films and Defendant refused claiming privilege over the films.
On application of the Plaintiff for disclosure Mr. Justice Johnston held that disclosure of the films to the defendants expert physicians resulted in a waiver of privilege such that the films needed to be disclosed to the Plaintiff.  The courts key reasoning is reproduced below:

[16] The competing consideration is that the tendency given the rules, such as the Evidence Act, ss. 10 and 11, Rule 40A and the rules relating to production, has been over the last number of years away from what used to be a trial by ambush style of advocacy toward pre-trial disclosure, forced or otherwise, in order to prevent two things:  One, impediments to settlement that keeping all one’s cards close to the vest tends to foster, but more to the point, what I indicated was a concern during argument, and that is the possibility, likelihood or probability that late disclosure, as Mr. Turnham would have it when counsel decides to call the witness or tender the written opinion, might lead to an adjournment of the trial, or, at minimum, an argument in the middle of a jury trial whether it should be adjourned.

[17] I conclude that privilege over the video has been waived by the delivery of reports of experts who have stated, each of them, that they have relied upon, in part, what they saw on the video.  I conclude that waiver is more logical, more defensible when what truly is disclosed in the reports ostensibly as the facts upon which the expert — and I refer now particularly to Dr. Warren who most helpfully listed what he observed — the facts upon which the expert relied, is, when really that expert’s interpretation of what the expert saw on the videotape.  It is not possible, in my view, for the opposing party to adequately prepare, either to cross-examine the expert if the expert is called, or to brief the parties’ own witnesses, on the strength of a description in writing of a witness’s interpretation of what is shown on the video.  To adequately prepare for trial the plaintiff must have the videotape to show to his witnesses and to review himself.  Trial fairness, as well as the promotion of efficiency in the courts and the trial process, dictates disclosure, so I order the videotape disclosed forthwith.

More from BC Court of Appeal on Jury Trials and Counsel Statements

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.

I recently posted on the potential for mistrials when counsel give their personal opinion in an opening statement to a jury.  Today reasons for judgement were released by the BC Court of Appeal further discussing, amongst other topics, proper opening remarks by counsel in a Car Crash case.
In today’s case (Moskaleva v. Laurie) the Plaintiff suffered serious injuries including a Mild Traumatic Brain Injury (MTBI) in a 2002 motor vehicle collision.  The Plaintiff was crossing with the light in a marked cross-walk in Maple Ridge at the time.
After a 18 day jury trial damages of over $1.9 million were awarded for her injuries and losses.  The Defendant appealed on 5 grounds stating that
1.  the opening submissions of respondent’s counsel were improper and prejudicial;
2.  the cross-examination of a psychiatrist called by the appellant exceeded the bounds of proper cross-examination and thereby prejudiced the jury;
3.  the trial judge’s interventions and questions during the testimony of three expert witnesses called by the defence impugned the credibility of those witnesses.
4.  the appellant alleges that the trial judge erred in his instructions to the jury by failing to explain properly the law relevant to past and future economic loss and by inaccurately stating the appellant’s position on that issue.  The relief the appellant seeks on the first four grounds of appeal is an order for a new trial.

5.  that the awards for non-pecuniary damages, past wage loss, and future economic loss are inordinately high, not supported by the evidence, and inconsistent with the jury’s award for cost of future care.

The Appeal was dismissed on all 5 grounds.  This case is worth reviewing for the courts discussion on these areas of law particularly the permissible scope of cross examination of experts and counsels opening statements.  Below I reproduce the Courts analysis of the opening statement of the Plaintiff’s lawyer:

[19] Under the first ground of appeal, the appellant argues that the opening submissions of respondent’s counsel were improper and prejudicial and resulted in an unfair trial.  To support her submissions that the opening statement failed to conform to the proper function or purpose of an opening, the appellant refers to Halsbury’s Laws of England, 3rd ed. (London: Butterworths, 1953), vol. 3, at 69, and to what was said by Finch C.J.B.C. in Brophy v. Hutchinson, 2003 BCCA 21 at paras. 24-25, 9 B.C.L.R. (4th) 46.  As to the effect of an improper opening statement, the appellant refers to Brophy at para. 48.

[20] The appellant complains that the opening statement contained no explanation as to its purpose and, rather than outlining the facts the respondent expected to prove, gave a description of the accident, the mechanism of a brain injury, and the respondent’s training and employment background, all as if they were established fact, thereby giving the impression that all that was important for the jury to consider was the evidence of the respondent’s symptoms in the aftermath of the collision.  The appellant further submits that in the opening, the respondent’s symptoms and the consequences of the accident were couched in pathos through an emotional appeal to the challenges faced by the respondent as an immigrant to Canada from Russia.  The appellant argues that while the complete effect of the opening remarks of respondent’s counsel cannot be known to a certainty, the character of those remarks was clearly prejudicial.  The appellant contends that the fullness of their effect was to cement for the jury as fact the assertion that the respondent had suffered a brain injury, was incapable of performing work, and had suffered a significant economic loss.

[21] The appellant also complains that a phrase used by the respondent’s lawyer at the conclusion of his opening improperly suggested that the accident, instead of being the result of negligence, was volitional.  In that regard, the appellant refers to the statement in the opening that the appellant “chose to launch her car forward from that stop sign and not pay attention to who was in the cross-walk”.  In the appellant’s submission, the effect was to present the appellant’s case in the context of the respondent as victim and the appellant as culprit.  The appellant argues that the effect was to demonize the appellant at the inception of the trial, thus implicitly characterizing her as a person who intentionally disregarded the interests of others, rather than being merely negligent.

[22] Another complaint the appellant makes is that it was improper for respondent’s counsel to use evidence in the form of photographs in the opening.

[23] In my view, none of the arguments put forward under the first ground of appeal can succeed.

[24] The appellant’s characterization of what was said in the respondent’s opening is overstated and, in some instances, inaccurate.  Prior to counsel for the respondent beginning his opening statement, appellant’s counsel informed the trial judge that he did not dispute that the appellant was negligent but said he was not in a position to admit liability.  As a result of the position taken, liability was obviously in issue.  In the circumstances, for respondent’s counsel to refer to the respondent’s recollection of the accident in his opening statement is unremarkable.  At trial, appellant’s counsel did not object to the description given by respondent’s counsel as to how the accident had occurred and did not complain that respondent’s counsel had “demonized” the appellant.

[25] The suggestion that a miscarriage of justice occurred as a result of what was said by respondent’s counsel in his opening about the circumstances of the accident is further undermined when considered along with the submissions on liability made later in the trial.  Before making his final submission to the jury, respondent’s counsel advised the trial judge and appellant’s counsel that he intended to submit that “one of the reasons why we’re here is because Ms. Laurie [the appellant] says she’s not at fault”.  Appellant’s counsel stated he did not have a problem with that submission and later agreed it was appropriate for the trial judge to instruct the jury to find the appellant negligent.  I further note that during the course of his closing submissions, appellant’s counsel told the jury:

Now, you’ve heard that Ms. Laurie ran her vehicle into the plaintiff.  There’s no doubt.  There’s no doubt that Ms. Moskaleva was in the intersection.  There’s no doubt that Ms. Moskaleva had the right-of-way.  There is nothing that I could say to suggest that Ms. Moskaleva did anything wrong, or that my client demonstrated all the care that she should have.  She didn’t.  She didn’t.  As a result you may find that my client was negligent.  I don’t have anything to say on that.  Nothing I can say.  I think it’s fairly obvious.

[26] In view of the foregoing, there is no substance to the submission that the remarks in the respondent’s opening about the appellant’s manner of driving at the time of the accident resulted in the kind of prejudice that would require a new trial.

[27] In his opening, respondent’s counsel showed the jury some photographs of the respondent and her husband.  Appellant’s counsel had been informed in advance by respondent’s counsel that he intended to use the photographs in his opening and appellant’s counsel told the trial judge he did not have “a problem” with the photographs.  After the opening had been given, appellant’s counsel repeated that he did not object to the use of the photographs.

[28] The appellant’s contention that the respondent’s counsel stated evidence as fact, thereby resulting in prejudice requiring a new trial, ignores the trial judge’s opening instructions to the jury.  Near the commencement of the trial, the judge gave the jury various instructions, including an instruction on the purpose of counsel’s openings.  After referring to the burden and standard of proof, the trial judge said, in part:

I will turn next to the opening remarks of counsel.  One of the Mr. Faheys will begin the trial once I have concluded my remarks.  He will take the opportunity to explain to you what he expects the evidence will disclose and give you an overview of his case.  Counsel for the defendant will do so at a later time after the plaintiff’s evidence has been called.  These opening remarks are made so that you will have a better understanding of the nature of the evidence that the parties intend to call; however, the opening remarks are not evidence and you cannot rely on what the lawyer says in his opening to prove the facts that you have to prove to decide the case.  You must only accept that the case is proven based on evidence that is called at court.

[29] Counsel for the respondent referred throughout his opening to the types of evidence he intended to adduce and what that evidence would show.  He specifically told the jury there would be controversy in the evidence concerning brain injury, concussion, and post-concussion syndrome and asked the jury to pay close attention to the evidence that would be led.  There were some phrases or statements in the respondent’s opening that might have been more carefully couched, but considered in the context in which they were uttered, they were not such as to exclude consideration of the case for the appellant.

[30] After the respondent’s counsel had concluded his opening statement, appellant’s counsel asked the trial judge to remind the jury that the opening was not evidence.  The trial judge decided his earlier instruction was sufficient, and in his charge, the judge reminded the jury that they were to rely on their own recollection of the evidence, not anything said by counsel.

[31] Of considerable significance in regard to this ground of appeal is the fact that appellant’s counsel told the trial judge he was not seeking a mistrial as a result of anything said during the opening.  This is a case in which appellant’s counsel specifically put his mind to the effect of the opening and elected not to seek an order discharging the jury. A deliberate election, such as occurred in this case, is a powerful circumstance militating against the appellant’s submission that a new trial is required to rectify an unfair trial.  While the facts of the case differ from the case at bar, the observation of Hall J.A. in R. v. Doyle, 2007 BCCA 587 at para. 28, 248 B.C.A.C. 307, is apposite:

In my opinion, having made a reasoned decision not to seek a mistrial, I do not consider it is open now to counsel for the appellant to advance an argument that the discovery and use by the judge of the evidence resulted in an unfair trial proceeding.  A rational choice was made at trial by experienced and competent counsel and it would not be appropriate to now allow this point to be the foundation of a contrary position in this Court.

[32] Further support for the view expressed by Hall J.A. may be found in Rendall v. Ewert (1989), 60 D.L.R. (4th) 513, 38 B.C.L.R. (2d) 1 at 10 (C.A.), and in Morton v. McCracken (1995), 7 B.C.L.R. (3d) 220 at para. 13, 57 B.C.A.C. 47.

[33] I would not accede to the first ground.

$220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Psychological Injury Cases, Uncategorized. 51 Comments on $220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.
What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.
Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.
The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).