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The Law of "Adverse Inference" Exlpained in BC Brain Injury Case

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.
Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.
Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.
In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

ICBC's Trial Policy Gets Judicial Attention

It used to be that when ICBC claims went to trial ICBC would only require the people they insure to participate at trial as necessary.  For example if fault was at issue the defendant would testify as to how the crash happened or if the Plaintiff seemed uninjured at the scene the Defendant would share his/her observations with the court.
More recently, ICBC has created a policy where the people they insure have to get extensively involved in the trial even if they have no vital role to play.   Reasons for judgement were released today by the BC Supreme Court discussing this ICBC trial policy.
In today’s case (Coates v. Marioni) the Plaintiff was injured 2006 car crash.  The at fault driver was insured by ICBC.  In the lawsuit the issue of fault was admitted leaving the court to only deal with the issue of the value of the ICBC claim.  The matter went to jury trial.  Just before trial ICBC made an offer to settle.  The Victoria jury returned a verdict just below ICBC’s formal settlement offer.  The trial judge was asked to decide what costs consequences should follow under Rule 37B since ICBC beat their formal offer (click here to read my previous posts about Rule 37B in ICBC Claims).
Madam Justice Gerow, who presided over this jury trial, refused to give the Defendant their costs despite beating their formal offer.  The Plaintiff was awarded costs through trial.  2 factors leading to this decision were the late delivery of ICBC’s formal settlement offer and the fact that the jury award was very close to the formal offer.
In asking that the Plaintiff be deprived of trial costs the lawyer hired by ICBC noted that the Plaintiff attended fewer days of the trial than the Defendant.  The court rejected this argument and in doing so discussed ICBC’s policy of forcing their insured defendants to sit through trial even if they have nothing to add to the evidence at trial.  Below are the highlights of this discussion:

[53] The defendant also argues that the plaintiff should be deprived of her costs because the defendant attended all of the trial and the plaintiff did not.  However, the defendant chose to attend the trial.  Although she testified, her evidence was very brief as liability had been admitted.  There was no requirement that the defendant attend throughout the trial, particularly in circumstances where she had to take time off work and travel to Victoria.

[54] The plaintiff argues the fact that the defendant attended more of the trial than the plaintiff is not a factor to be considered in assessing whether the plaintiff should be deprived of her costs.  The plaintiff points to an ICBC claims bulletin dated June 13, 2008 outlining a policy that requires defendants to attend the trials from start to finish.  In the bulletin it sets out that:  “This policy applies even if they will not be testifying.  The intent of the new requirement is to present a ‘face’ for the defendant to the court.  Defence counsel will be instructed to have the defendant sit at counsel’s table if possible.”  In the circumstances, I do not accept the defendant argument that her attendance at the trial is a factor that should favour depriving the plaintiff of her costs.

[55] Having considered the factors set out in subrule 6, including the relationship between the offer and the award, I have concluded that this is not an appropriate case in which to exercise my discretion to deprive the plaintiff of her costs on the basis of the offer to settle.

If you are insured with ICBC and are at fault for a car crash and injure another do you think there is any value in being forced to trial even if you have nothing to add?  Does giving a ‘face to the defendant’ make any sense when the lawsuit is an insured claim?  As always, feedback is welcome.

Lawyers Opinions, Mistrials and ICBC Injury Claims

US Trial Lawyer Elliott Wilcox recently wrote a great article on why “I” is one of the most dangerous words for a lawyer to utter in court during a jury trial.  The short answer is because it is inappropriate for lawyers to share their personal opinion as to the merits of a case.  When a lawyer uses the word “I” there is a good chance a personal opinion is going to follow.
Reasons for judgement were released today by the BC Court of Appeal demonstrating the repercussions of counsel sharing their opinions during jury trials.
In today’s case (Joy v. Atkinson) the Plaintiff’s lawyer made several comments during his opening statement to the jury which the ICBC defence lawyer took objection to.  After hearing submissions in the absence of the jury the trial judge granted a motion for a mistrial (click here to read my previous post about the trial judgement).
In dismissing the appeal the BC Court of Appeal said the following about lawyers sharing their personal opinion of the merits of the case in jury trials:

[20]          Whether the plaintiff’s argument is otherwise sound need not be decided because there is a further aspect of counsel’s opening that is of particular concern.  Counsel expressed his personal belief in the strength of the plaintiff’s case when he told the jury “we had to satisfy ourselves that Mr. Joy’s injuries are real, serious, and permanent” and that “Geno Joy has and will continue to suffer real harms and losses now and into the future”.  In my view, there is no doubt this was clearly an improper statement.  Counsel acknowledged that to be the case in submissions on the application for a mistrial.  He was in effect giving evidence, albeit inadmissible evidence that could never be challenged, about the plaintiff’s injuries and his losses. 

[21]          Counsel’s suggestion before the judge was that any damage done could be corrected by a jury instruction or what he referred to as a “rebuke”.  But no meaningful suggestion as to what that instruction might be was made nor is one advanced now.  I am unable to see what instruction the judge could have given the jury that would have afforded the defence any confidence counsel’s expression of his satisfaction with the plaintiff’s claim would be ignored.  The jury had been told counsel had satisfied himself – he knew, apparently by investigation – the injuries suffered which the defence was challenging were real, serious, and permanent and they had caused, and would in the future cause, real losses.  That was not an assertion each member of the jury could be expected to completely ignore no matter what they were told, and it bore directly on the fairness of the trial.

[22]          The judge did not refer to this part of the opening statement in the reasons he gave for declaring a mistrial but, in my view, it is fatal to the success of this appeal.  It cannot now be said there was no sound basis for a mistrial.

BC Personal Injury Claims and Circumstantial Evidence

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.

Did ICBC Snoop in my Private Records When I Was Called for Jury Duty?

Given ICBC’s admitted snooping in jurors private records in a recent personal injury trial in Victoria, BC, many people who have sat as jurors or even called as witnesses in ICBC Injury Cases may be wondering whether their records were compromised when they were called to court to perform their civic duty.

ICBC’s public take on the matter is that to the very best of ICBC’s knowledge “this was an isolated incident“.
For the sake of people who have sat on civil juries in the past and for the integrity of the administration of justice in BC I certainly hope that is the case.  However, ICBC has by their own admission not completed a full review of past jury cases at this time.  As I write this article ICBC’s website states that “we have already begun a full review of previous cases handled by the defence counsel in question” and “we are undertaking a review of past jury trials and will report on our findings”  so the possibility of this occurring in other ICBC jury trials cannot be excluded.
If you sat on a jury in an ICBC Case or were called as a witness in an ICBC case and are wondering whether your private records were compromised and misused can you do anything to get to the bottom of matters?  
The answer is yes and is contained in the BC Freedom of Information and Protection of Privacy Act.  This act makes public bodies (such as ICBC) more accountable to the public with respect to the protection of personal privacy and gives members of the public certain rights with respect to the access of records held by these bodies.
So, if you sat on a jury in an ICBC Claim and during that time had an active claim of your own and are wondering if ICBC misused your private records you can make an application under section 5 of the Act and ask ICBC to share your records with you including information about whether anyone from ICBC accessed your file during the time you were on jury duty.
If you have any questions about making a Freedom of Information Request for your ICBC records you can contact a BC Personal Injury Lawyer or a Lawyer experienced in privacy matters.  These requests are routinely made in ICBC claims and assistance can be provided by experienced people if needed.
What if you find out that your records were misused?  Hopefully ICBC will make proper amends if this is the case as “The responsibility of protecting the private information of our customers is something that ICBC takes very seriously.”  As I previously posted, a separate law called the BC Privacy Act, makes it a tort if your privacy was violated “willfully and without claim of right” and this legislation is worth reviewing for anyone concerned about their privacy and the potential misuse of private records by public bodies.

$45,000 Pain and Suffering Awarded for Neck, Shoulder and Jaw Injuries

Reasons for judgement were released today (Romanchych v. Vallianatos) by the BC Supreme Court, Vancouver Registry, awarding just over $132,000 in total damages to a Plaintiff injured in a 2006 BC Motor Vehicle Collision.  
The collision was a rear-ender on the Alex Fraser Bridge in Delta, BC.  The crash was forceful enough to write off the 24 year old Plaintiff’s vehicle.
Madam Justice MacKenzie of the BC Supreme Court summarized the Plaintiff’s injuries as follows:  
I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms improved over time, they have not resolved.   She currently suffers chronic neck and shoulder pain. She can manage her pain  level if she avoids aggravating her injuries by limiting her activities. The plaintiff is  also vulnerable to future episodes of jaw pain. I find in favour of the plaintiff’s  submission, except for small adjustments to the quantum of damages claimed. 
In awarding $45,000 for the Plaintiff’s non-pecuniary damages (pain and suffering) the court engaged in the following analysis:
Conclusion on Non-Pecuniary Damages 
[71] On the whole, the expert opinions support a strong inference that the plaintiff’s injuries are chronic and that they will continue to affect her permanently. Given that she must limit her activities to minimize and manage her pain, the  evidence shows that it is probable that her pain and resulting limitations will continue  indefinitely. 
[72] I find on the totality of the evidence that the accident caused the plaintiff’s neck and shoulder injuries with associated headaches and jaw pain. While her symptoms have improved over time, they have not resolved.   
[73] I also find that the jaw symptoms which arose in August 2007 were indeed caused by the accident of July 4, 2006. I also observe that the jaw symptoms experienced in December 2006 may have been related to the accident as well.    
[74] Both counsel rely on the non exhaustive list of factors in Stapley v. Hejslet, 2006 BCCA 34, 263 D.L.R. (4th) 19 at paras. 45-46. The award for general damages, will of course, vary according to the specific circumstances of the individual case, but the factors include:   
(a) age of the plaintiff;  
(b) nature of the injury;   
(c) severity and duration of pain;   
(d) disability;    
(e) emotional suffering; and   
(f) loss or impairment of life;    
(g) impairment of family, marital and social relationships;   
(h) impairment of physical and mental abilities;   
(i) loss of lifestyle; and   
(j) the plaintiff’s stoicism (as a factor that should not, generally speaking,   penalize the plaintiff: Giang v. Clayton, [2005] B.C.J. No. 163, 2005 BCCA 54 (B.C. C.A.)).   
[75] The defendant relies upon the following cases as being reasonably analogous to this case and as supporting an award in the range of $15,000 to $22,500 for general damages: Kain v. Kirkman, 2006 BCSC 1770; Nickerson v. Allen Estate, 2006 BCSC 562; Aulakh v. Poirier, 2006 BCSC 2027, and my own decision in Moore v. Cabral, 2006 BCSC 920. However, those cases are all distinguishable from this case.   
[76] The plaintiff relies upon the following cases as supporting an award of $50,000 for general damages in this case: Henri v. Seo, 2009 BCSC 76; Chin v. McCabe, 2006 BCSC 1589; and Pavlovic v. Shields, 2009 BCSC 345. In my view, these cases are reasonably similar to this case and reflect analogous general damages.    
[77] Therefore, an appropriate award of non-pecuniary damages in this case is $45,000
One of the points of interest in this case was the courts comments on Dr. Goldstein. an oral medicine specialist, who ICBC often retains in jaw injury cases.  His evidence was rejected over the Plaintiff’s treating oral medicine specialist Dr. Gardner.  
Specifically, in finding bias in doctor Goldstein’s evidence, Madam Justice MacKenzie commented as follows:
[66] Dr. Goldstein’s bias in favour of the defendant’s case became evident during cross-examination. His attempt under cross-examination to distance himself from the meaning of the phrase emphasized in the above quote damaged his reliability as a witness. 
[67] I also view Dr. Goldstein’s opinion with scepticism because he was not forthright in his report about the fact that flexion extension injury from motor vehicle accident trauma could cause jaw symptoms. Under cross-examination, counsel for the plaintiff put one of Dr. Goldstein’s own articles to him in which he noted the close correlation between TMD and motor vehicle accident trauma. 

ICBC Snooping in Jurors Records, Apologies and the Privacy Act

BC Personal Injury Lawyers have been abuzz lately with the news that ICBC intentionally snooped into jurors claims histories while conducting the defence in a recent ICBC Injury Trial.
I have been following this story since it first came to my attention a few weeks ago.  It was reported by Ian Mulgrew of the Vancouver Sun and more recently by the Louise Dickson of the Victoria Times Colonist.  In a nutshell the facts behind the story are as follows:  
The Plaintiff was injured in 2 motor vehicle collisions.  She sued for damages.  The trial for both claims were to be heard at the same time.  ICBC chose to have both matters heard by Jury Trial.  At the beginning of trial the Plaintiff brought an application to strike the jury and have the matter proceed by Judge alone.  Mr. Justice Macaulay, the presiding judge, dismissed this motion and let the jury trial begin.  (click here to read the reasons denying the motion to strike the jury).
A few days into the trial a settlement was reached.  At the same time ICBC admitted to improper conduct, particularly snooping in the jurors private ICBC records.   This breach of privacy was apparently initiated by ICBC’s defence lawyer who asked an ICBC adjuster to provide her with the juror’s claims histories.  This admission concerned the presiding judge who discharged the jury and ordered that the ICBC defence lawyer and ICBCs’ corporate counsel appear before him for a subsequent hearing to shed some light on why the jurors claims histories were improperly disclosed to ICBC’s defence lawyer.
The following hearing took place today in the BC Supreme Court.  One thing that I and many other personal injury lawyers had hoped for was that some information would have come to light about the frequency with which this snooping has occurred in the past.  Particularly has ICBC improperly accessed jurors, plaintiffs or witnesses ICBC claims histories in other cases?  Unfortunately these important questions were left unanswered.  
Mr. Justice Macaulay held that the behaviour that came to his attention fell short of contempt of court however that it was improper and left serious concerns about the administration of justice in BC.  The Times Colonist reported that ” The justice again emphasized he had serious concerns that the unauthorized disclosure of the two claims history impacts the administration of justice.  Macaulay said it was not the responsibility of the court to investigate alleged breaches of the Information and Privacy Act, nor was it the function of the court to decide whether the lawyer’s conduct falls short of professional standards. Macaulay said he was concerned about fairness. If the plaintiff had called for a mistrial, Macaulay said he likely would have granted one.”
According to the Times Colonist “Macfarlane (ICBC’s corporate counsel) said ICBC had sent letters of apology to five of the eight jurors, but had been unable to contact the remaining three. Macaulay told him ICBC would not have the assistance of the court in contacting them.”
I wonder if ICBC’s letters of apology to the jurors make any mention of the BC Privacy Act and the fact that “it is a tort, actionable without proof of damage, for a person, willfully and without a claim of right, to violate the privacy of another“.  I hope that ICBC’s letters contain more than a mere apology but proper compensation for this improper use of the jurors records.  I further hope that this is an isolated incident and some sort of objective proof can be had to verify if this is the case.  
The concerns about this behaviour and its impact on the administration of justice are serious ones.  I commend the individuals at ICBC who came clean about this breach of Privacy but given the vast records that ICBC have in their database regarding British Columbians and the relative ease with which these can be accessed by ICBC adjusters this story should not end until there is a proper and verifiable assurance from ICBC that this is an isolated incident and that the jurors whose privacy was breached are properly compensated for this wrong. 

More on Rule 66, Rule 37B, ICBC Claims and Costs

Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff sued for damages under Rule 66.  The Plaintiff made a formal offer of settlement and ICBC did not accept it.  The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer.  (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences.  ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66.  Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs.  Madam Justice Adair reasoned as follows:

[13]        Sub-rules (29) and (29.1) of Rule 66 provide (italics added):

(29)      Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a)   if the time spent on the hearing of the trial is one day or less, $5 000;

(b)   if the time spent on the hearing of the trial is more than one day, $6 600.

(29.1)   In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

Rules 37 and 37A have been repealed and replaced with Rule 37B.

[14]        In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66.  By October 2008, the parties themselves realized that two days would not be sufficient for trial.  Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence).  Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed.  I did not consider counsel were inefficient in their use of time.  I am satisfied that the length of the trial itself constitutes “special circumstances” in this case.  See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.

[15]        In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.

The second issue worth noting were the costs consequences under Rule 37B.  The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward.    Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:

19]        Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided?  Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, at para. 24.  Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial. 

[20]        The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness.  However, there were serious risks in that strategy.  Dr. McPherson was very closely tied to ICBC, and had been for over a decade.  This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson.  As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert.  Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court.  His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare.  As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own.  In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle.  The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial.  A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided.  This factor supports the plaintiff.

[21]        The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer.  This factor also supports the plaintiff.

[22]        With respect to the relative financial circumstances of the parties, I consider this factor neutral.

[23]        Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.

More on ICBC Injury Claims and Future Wage Loss

If you are injured through the fault of another motorist in BC and advance a tort claim with ICBC can you receive damages for future wage loss even if you have sustained no past wage loss by the time of settlement or trial?  The short answer is yes and today 2 cases were released by the BC Supreme Court illustrating this principle.  
In the first case (Kasic v. Leyh) the Plaintiff was injured in a 2004 rear-end collision.  He suffered relatively serious and chronic injuries which were summarized as follows by Madam Justice Morrison of the BC Supreme Court:

[138]      Mr. Kasic’s headaches and neck pain which he suffered immediately after the accident resolved within a fairly short time.  However his lower back pain has not.  Ever since the accident, he has had serious and chronic pain.  That continues to this day.  He has been motivated and compliant with regard to all treatments suggested, with the exception of the Pulsed Signal Magnetic Therapy.

[139]      The medical evidence is not in complete agreement as to the exact diagnosis that is causing the pain in the lower back; Dr. McGraw believes that it is the sacroiliac joint, Dr. Hershler is of the opinion that it is a bulging disc irritating a nerve, or a combination of that and the sacroiliac joint.  But there is agreement that Mr. Kasic’s symptoms are aggravated by his activities.  And there is certainly agreement from all the evidence tendered that Mr. Kasic is in continuous and serious pain.

[140]      Will it be a permanent disability?  Dr. Hershler holds out hope that there could be a significant improvement if Pulsed Signal Magnetic Therapy were pursued.  But this is not a form of treatment widely recognized by the medical profession, and certainly not by Dr. McGraw.  Dr. McGraw seemed to hold out hope that if there were a correct administration of the injection of the therapeutic block, that this could eliminate some or much of Mr. Kasic’s pain.  Certainly the one injection in October 2008 in that area worsened Mr. Kasic’s condition.

[141]      Whether either or both of these suggested treatments are to be tried will be a matter between Mr. Kasic and his medical advisors.  But at the present time, the evidence remains that Mr. Kasic is suffering continuous and debilitating pain, and it has been chronic pain since the date of the accident.  It has changed him physically, mentally and emotionally.

[142]      The changes to Mr. Kasic’s life as a result of his injuries are many.  He continues to need pain medication.  His previous activities of bowling, tennis, soccer, bocce ball, baseball and picnics are no longer activities in which he can participate.  He can help very little around the house, whether it is vacuuming, loading or unloading the dishwasher, moving furniture, or doing yard work.

[143]      He cannot plan to buy his own home, as he can no longer do the jobs and the outside work that he would normally have done.  His leisure activities with his wife and children have been diminished dramatically, as has his intimate and sexual life with his wife.  He has continuous problems sleeping, and his wife often sleeps in another room.  Mr. Kasic’s mood, disposition and temper have changed significantly.  He cannot do the most simple things such as dressing himself, taking a shower or brushing his teeth without unusual discomfort, positioning and pain.

[144]      An undisputed hard worker, Mr. Kasic stated, “I like to work hard to make more money for my family.”  His work history has indicated that, both before and after the accident.

[145]      Mr. Kasic’s ability to earn in the future has been compromised.  It is an asset he has, in part, lost.  His injuries have rendered him less capable overall from earning income from all types of employment, particularly those that require twisting, bending, standing, sitting for any length of time, or involve any kind of heavy work.  He is less marketable or attractive as an employee to potential employers.

[146]      One presumably has an obligation to advise a future employer if there are concerns such as chronic back problems.  This plaintiff has lost the ability to take advantage of job opportunities which he might otherwise have had.

[147]      Mr. Kasic appears to consider himself less capable and less valuable as a person, because of his condition.  He was 45 when this accident occurred.  He is 50 years of age now.  The real probabilities he faces are fewer jobs available to him, the chance of losing a job or jobs, and possibly having to retire early.  His reduced level of energy and inability to sustain work are factors to be considered.

Despite these serious and permanent injuries the Plaintiff had suffered a minimal wage loss by the time his tort claim against the at fault motorist went to trial.  In fact, the Plaintiff’s earnings increased from the time of the collision to the time of trial.  Depsite this the court held he was entitled to damages for loss of earning capacity and in assessing this loss at $100,000 the court reasoned as follows:

[152]      On the issue of loss of earning capacity, clear guidance can be found in the judgment of Huddart J.A. in Rosvold v. Dunlop.  Mr. Kasic’s capacity to earn income is an asset which has been, in part, taken away from him.  I have found that he has a permanent partial disability, and that limits his work in a number of areas, which in turn impairs his earning capacity.

[153]      The defence seems to suggest that Mr. Kasic has reached his goal upon coming to Canada, that his work as a caretaker together with a rental apartment in subsidized housing suggests that he has reached his earning capacity and goals.  They point to his past earnings, and note that he has steadily increased his earnings, which is true.  But as the courts have reminded us, past earnings are only one factor to consider.

[154]      The standard of proof to be applied in making an appropriate damage award under this category is simple probability, not the balance of probabilities.  And the Athey case reminds us that possibilities and probabilities, chances, opportunities and risks all have to be considered, as long as they do not amount to mere speculation.

[155]      Counsel for the plaintiff suggests that there is the possibility that Mr. Kasic will have to retire early, and I agree that this is a possibility.  Counsel argues that even if he had to retire just three years early, this would be a loss equivalent to $150,000.  This is based on Mr. Kasic’s earnings in 2007 of just over $40,000, and both counsel have factored in an additional $10,000 because of the generous housing allowance and benefits.  This would amount to a real loss of $50,000 a year or $150,000 if Mr. Kasic retired three years early.

[156]      Taking into account negative as well as positive contingencies, in my view an appropriate damage award for loss of earning capacity would be $100,000, and I award that amount.  In my view, the position taken by the defence with regard to this issue has been unrealistic, and their suggested figure of $10,000 under this category of damages does not meet the test of fairness and reasonableness.

In the second case released today (Weibe v. Peters) the Plaintiff was injured in a 2003 motor vehicle collision.  The Plaintiff was a career tradesman who worked as a vinyl deck installer.  As a  result of the collision Mr. Justice Grist of the BC Supreme Court found that the Plaintiff “will continue to have long term back pain fron the injuries suffered fron the collision which will restrict him from certain forms of physical activity...”

Despite his injuries the Plaintiff lost a minimal amount of time from work by the time of trial.  In awarding $125,000 for the Plaintiff’s diminished earning capacity Mr. Justice Grist engaged in the following useful analysis:

[32]        The wage loss prior to the date of trial in this case is confined to a minimal number of days off because of back pain, with some time loss to attend doctors’ appointments and physiotherapy. The plaintiff has not been able to provide a record of this wage loss and I cannot fix any sum under this head. As to loss of future earning capacity, I accept that Mr. Wiebe took his present form of employment because he was not able to maintain the physical demands of installations of vinyl decks. Further, he was not able to obtain a management position that would have relieved him from the demands of actual installations. He acted appropriately in taking the position he now holds, which pays the same as his past employment without the benefits which that employment offered. Again, there is no evidence of the value of lost benefits. I accept the evidence that the employment through Mr. Hepple has very little security. He is the only employee and dependent on success of both the turkey farm and the concrete mantle manufacturing business. Mr. Hepple is happy with the plaintiff’s work, however, as both the plaintiff and Mr. Hepple acknowledged, the earnings provided are probably more than this form of employment can justify. If Mr. Wiebe cannot continue in this form of work, he will likely have to retrain or find some opportunity as a manager in a deck installation company, a form of work he hasn’t been able to secure despite efforts in the past. In light of the risk inherent in being let go by his present employer, on balance I think it most likely that Mr. Wiebe will have to face this change of employment in the future, and that retraining is the most likely prospect. I keep in mind the factors mentioned in Kwei v. Boisclair, [1991], B.C.J. No. 3344 (C.A.), and Brown v. Golaiy, [1985] B.C.J. No. 31 (S.C.). In setting damages under this head of loss, specifically:

1.         The plaintiff has been rendered less capable overall from earning income from all types of employment;

2.         The plaintiff is less marketable or less attractive as an employee to potential employers;

3.         The plaintiff has lost the ability to take advantage of all job opportunities which might otherwise have been open to him had he not been injured; and

4.         The plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

[33]        The plaintiff has been well regarded by his employers and has shown industry and responsibility to his family in retaining employment through the difficulties to the present time. I expect this will serve him well in the future. Nonetheless, retraining and start-up in a substitute form of employment will require a considerable period of time before Mr. Wiebe will be able to reproduce his past level of earnings.

[34]        The cases cited vary widely in fixing the loss of future earning capacity. At the high end, in Fox v. Danis, [2006] B.C.J. No. 1437 (C.A.), damages under this head of loss totalled $750,000. This however, was a case involving an individual likely to lose all forms of full-time employment. In Demedeiros, the head of damage was compensated in the sum of $180,000. This case, however, involved a stone mason who may have lost the opportunity to succeed his father in a fairly remunerative family business. In Kerr, the plaintiff was a 54 year old school teacher who had lost his ability to participate actively in sports, but who continued in his employment. It was judged that he may be forced to retire earlier and may be restricted in gaining employment after retirement. Damages under this head were assessed in that case at $75,000.

[35]        I view the likely loss here as greater in scope than indicated in Kerr but not of the degree of loss in Demedeiros and Fox. I think the appropriate level assessment under this head is the sum of $125,000.

Jury Trials and Your ICBC Injury Claim

Personal Injury Trials carry a certain element of risk with them.  Typically there are 2 competing medical theories with respect to the extent of injury and connection to trauma.  Additionally there is often disagreement as the value of damages for these injuries by the lawyers involved regardless of which sides medical evidence is accepted.  Furthermore a certain injury can be valued differently by different judges but varying results may be acceptable provided the compensation rests within the conventional range of damages for similar injuries.  All of this adds to the risk of trial and the difficulty of attaching a specific value to any given ICBC claim for pain and suffering.
Injuries can best be valued in ranges and the best one can do to determine the likely range of an ICBC pain and suffering claim is to look to previous court judgements for guidance.   Judges have to give reasons for their verdict, summarize the evidence they accept and award a specific figure for non-pecuniary loss.  If you look up enough similar cases you may be able to come up with a range of potential damages for pain and suffering for categories of injuries.  (click here for a previous discussion of some of the factors that go into valuing pain and suffering in BC tort claims)
Jury trials carry an additional element of risk in BC Personal Injury Claims.   One of the main reasons why jury trials are less predictable than judge alone trials is because jurors are not permitted to be given a range of damages for non-pecuniary loss by the lawyers arguing the case.  The BC Court of Appeal imposed this restriction on lawyers and this remains the law in BC.
In your typical ICBC claim that heads to trial with a jury 8 members of the public with little or no experience attaching a dollar figure to pain and suffering will be asked to value a Plaintiff’s injury.  These 8 members of the public will not be given guidance from the Court or from the lawyers involved as to what an appropriate range of damages is.  This may sound strange but its true.  Without referencing precedent its easy to understand how different juries can have wild swings in the amount of money they award a plaintiff for pain and suffering in an ICBC injury claim.
Reasons for judgement were released today by the BC Supreme Court illustrating the type of low award juries can award in ICBC Claims.
In today’s case (Cairns v. Gill) the Plaintiff sued for damages as a result of a 2005 BC Car Crash.  Madam Justice Gill, the presiding trial judge, summarized the evidence led by the Plaintiff at trial as follows:

[3]           The injuries sustained by the plaintiff were, in a relative sense, of a minor nature.  Ms. Cairns testified that her neck was sore immediately after the accident and she developed a headache.  By the next day, she also had pain in her shoulders.  She went to a drop-in clinic and was given a referral to massage therapy, but she did not attend because such therapy had not assisted in the past.  Some time after the accident, she began to feel pain in her low back.  It was Ms. Cairns’ evidence that her headaches lasted for several months and her neck and shoulder pain persisted for approximately one year.  Her low back pain resolved approximately a year and a half after the accident.  As to the frequency of her pain over the periods in question, she testified that she had pain on a daily basis for one or two weeks and thereafter, it came and went.

[4]           Ms. Cairns testified that her injuries precluded her from engaging in certain activities such as walking, running and attending aqua fit classes and affected her ability to lift and carry.  Her inability to engage in pre-accident activities also led to weight gain.  At the time of the accident she was employed at The Brick and was attending university.  It was her evidence that she missed two days from work, one immediately after the accident and the second, some time later. 

 In today’s case the jury awarded a mere $500 for the Plaintiff’s pain and suffering.  Granted it is unknown whether the jury accepted or rejected the Plaintiff’s evidence of injury, however, assuming it was accepted one would be hard pressed to find a judgement this low by a BC Supreme Court judge for similar injuries.

Perhaps if the jury was given a range of damages for similar injuries the Plaintiff would have received a better result.  Perhaps if the jurors knew what was typically awarded for such injuries their award would have been in the more conventional range.   Maybe none of this would have made a difference in the Plaintiff’s case but it just seems to make good sense to let juries have the same information judges have when it comes to valuing pain and suffering.  What are your thoughts?