BC INJURY LAW – Page 250 – The MacIsaac Group of Law Firms

Can ICBC Talk to my Doctors About my Injuries?

Written by admin on April 14, 2009. Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 102 Comments on Can ICBC Talk to my Doctors About my Injuries?

When you are injured by another motorist in British Columbia and advance an injury claim does ICBC have access to your treating physicians to receive information about the nature and extent of your injuries?
If you are seeking no-fault benefits from ICBC under Part 7 of the Insurance (Vehicle) Regulation the answer is yes. Section 98 of the Regulation reads as follows:

98 (1) An insured shall, on request of the corporation, promptly furnish a certificate or report of an attending medical practitioner, dentist, physiotherapist or chiropractor as to the nature and extent of the insured’s injury, and the treatment, current condition and prognosis of the injury.

(1.1) The certificate or report required by subsection (1) must be provided to the corporation

(a) in any form specified by the corporation including, without limitation, narrative form, and

(b) in any format specified by the corporation including, without limitation, verbal, written and electronic formats.

(2) The corporation is not liable to an insured who, to the prejudice of the corporation, fails to comply with this section.

What if you are injured by a person insured with ICBC and make a tort claim in the BC Supreme Court against them for your pain and suffering and other losses? In the course of defending the Claim can the lawyer hired by ICBC have access to your treating physicians to discuss the nature and extent of your accident related injuries?

Reasons for judgement were released today (Scott v. Erickson) by the BC Supreme Court, Victoria Registry, dealing with this issue.

In today’s case the Plaintiff was injured in a 2004 motor vehicle collision. In the course of her recovery she was treated by a neuropsychologist. The injury lawyer defending the claim brought an application to speak with the Plaintiff’s treating neuropsychologist. In dismissing this application, Master McCallum of the BC Supreme Court summarized the law relating to defendants access to treating physicians in injury litigation as follows:

[8] The Defendant applies for two orders. The second application for permission to speak to a doctor may be disposed of summarily. I refer to the decision of Wilkinson J. in Swirski v. Hachey, [1995] B.C.J. No. 2686 where the court held that there was no necessity for an application for permission to speak to plaintiff’s treating doctors concerning information relevant to the claims made in the action. The court suggested that notice should be given of an intention to seek informal discussions with plaintiff’s treatment providers and confirmed that treatment providers were not compelled to participate in such meetings.

[9] The Plaintiff in the case at bar knows of the Defendant’s intention to speak to Dr. Martzke and Dr. Martzke will know that he is free to participate or not as he pleases. No order is necessary. As the court said in Demarzo v. Michaud, 2007 BCSC 1736, if the Defendant’s counsel wishes to compel the treatment providers to participate in discussions, an application under Rule 28 is the appropriate vehicle.

In other words, there is no property in a treating physician and a court order is not required for a defendant to approach a Plaintiff’s treating physicians. However, the treating physicians are under no duty to participate in discussions initiated by the defendant in a lawsuit. As a result of the professional obligations of treating physicians in British Columbia, many decline to participate in such discussions.

Lawyers involved in the defence of BC injury claims should also keep their professional duties as set out in Chapter 8, section 14 of the Professional Conduct Handbook in mind which states as follows with respect to cotacting opposing expert witensses:

Contacting an opponent’s expert

14. A lawyer acting for one party must not question an opposing party’s expert on matters properly protected by the doctrine of legal professional privilege, unless the privilege has been waived.

[amended 12/99]

15. Before contacting an opposing party’s expert, the lawyer must notify the opposing party’s counsel of the lawyer’s intention to do so.

[amended 12/99]

16. When a lawyer contacts an opposing party’s expert in accordance with Rules 14 and 15, the lawyer must, at the outset:

(a) state clearly for whom the lawyer is acting, and that the lawyer is not acting for the party who has retained the expert, and

(b) raise with the expert whether the lawyer is accepting responsibility for payment of any fee charged by the expert arising out of the lawyer’s contact with the expert.

[amended 09/06]

17. In Rules 14 to 16, “lawyer” includes a lawyer’s agent.

In situations where treating physicians refuse to particiapte in an interview set up by the defence lawyer in an injury claim today’s case appears to indicate that Rule 28 of the BC Supreme Court Rules is the proper tool to use to compel the witness to share any relevant facts he/she may have knowledge of. Rule 28 states as follows:

Order for

(1) Where a person, not a party to an action, may have material evidence relating to a matter in question in the action, the court may order that the person be examined on oath on the matters in question in the action and may, either before or after the examination, order that the examining party pay reasonable solicitor’s costs of the person relating to the application and the examination.

Expert

(2) An expert retained or specially employed by another party in anticipation of litigation or preparation for trial may not be examined under this rule unless the party seeking the examination is unable to obtain facts and opinions on the same subject by other means.

Affidavit in support of application

(3) An application for an order under subrule (1) shall be supported by affidavit setting out

(a) the matter in question in the action to which the applicant believes that the evidence of the proposed witness may be material,

(b) where the proposed witness is an expert retained or specially employed by another party in anticipation of litigation or preparation for trial, that the applicant is unable to obtain facts and opinions on the same subject by other means, and

(c) that the proposed witness has refused or neglected upon request by the applicant to give a responsive statement, either orally or in writing, relating to the witness’ knowledge of the matters in question, or that the witness has given conflicting statements.

Notice of application

(4) The applicant shall serve notice on the proposed witness at least 7 days before the hearing of the application.

Subpoena

(5) Where a party is entitled to examine a person under this rule, by serving on that person a subpoena in Form 21, the party may require the person to bring to the examination

(a) any document in the person’s possession or control relating to the matters in question in the action, without the necessity of identifying the document, and

(b) any physical object in the person’s possession or control which the party contemplates tendering at the trial as an exhibit, but the subpoena must identify the object.

[am. B.C. Reg. 95/96, s. 12.]

Notice of examination

(6) The examining party shall give notice of examination of a person under this rule by delivering copies of the subpoena to all parties of record not less than 7 days before the day appointed for the examination.

Mode of examination

(7) The proposed witness shall be cross-examined by the party who obtained the order, then may be cross-examined by any other party, and then may be further cross-examined by the party who obtained the order.

Application of examination for discovery rules

(8) Rule 27 (15), (20) and (22) to (26) apply to an examination under this rule.

$36,000 Non-Pecuniary Damages Awarded for Rib Injury

Written by admin on April 13, 2009. Posted in ICBC Privacy Issues, ICBC Soft Tissue Injury Cases.

Reasons for judgment were released last Thursday (Grier v. Saadzoi) awarding a Plaintiff just over $46,000 in total damages as a result of injuries suffered in a 2004 British Columbia motor vehicle collision.
The crash happened in Surrey, BC. The collision resulted in significant vehicle damage totalling the Plaintiff’s car. The Plaintiff suffered various soft tissue injuries and rib pain.
In assessing the Plaintiff’s pain and suffering at $36,000 Mr. Justice Brooke summarized the Plaintiff’s injuries as follows:

[24] I find that the plaintiff was a credible witness, who neither exaggerated nor diminished the injuries that she sustained or the continuing pain and discomfort she has. She was a reliable historian. She struck me as a person who is getting on with her life, despite having to put up with some pain and discomfort. I am also satisfied that she has followed the advice that she has been given in terms of stretching and exercise and that she avoids, where she can, physical activity which will trigger any discomfort in the area of her rib.

[25] The plaintiff has made a good recovery from the soft tissue injuries that she sustained in a forceful motor vehicle collision. I find that the pain associated with the lower left rib was caused by the collision and that whether Dr. Vallentyne is correct, that the pain is a result of subcostal muscular involvement or Drs. Luoma and Coghlan are correct, that the pain is associated with the first floating rib, that the injury and its consequence is likely permanent. Fortunately, however, the result is a modest impairment of her overall capacity and it can be controlled, to some extent, by avoiding certain physical activity, as well as involving herself in an exercise and stretching program and taking medication to assist her in sleeping and to moderate the pain.

[26] Non-pecuniary damages are a “once and for all” award to compensate a plaintiff for pain, suffering and loss of enjoyment of life caused by the injury to the date of assessment and for the future. In assessing damages, the ranges of damages awarded in comparable cases can be a useful guide, but in each case, the court must fashion an award that provides compensation to the plaintiff. This is not a case like Price v. Kostryba, [1982] 70 B.C.L.R. 397 (S.C.), or Butler v. Blaylock Estate, [1981] B.C.J. No. 31 (S.C.), where complaints of injury continue long after the normal period for recovery, but rather one where the injury is real and continues to cause pain and discomfort and will likely do so for the foreseeable future. I assess non-pecuniary damages at $36,000.

One aspect of this judgment that interested me was the court’s summary and analysis of the surveillance evidence the defendant’s used during the trial. Video surveillance is commonly used by ICBC in the course of defending soft tissue injury claims and this judgement shows that surveillance video is not always a damaging thing.

In today’s case the video showed the Plaintiff doing various physical activities including riding a motorbike. This did not appear to hurt the Plaintiff’s case any as this video did contradict her evidence about her limitations. The surveillance evidence was summarized at paragraph 19 as follows:

[19] As part of the case for the defendant, a series of videos was put in evidence showing the plaintiff riding a motorbike off road and shopping and going about her normal household activities. Clearly, the videotape was made surreptitiously and without the plaintiff’s awareness. While the tape does not display any particular discomfort evinced by the plaintiff, her activity is restrained when compared to the activity of her husband who was with her. She says that before the accident, they operated their motorbikes off road and on rugged and uneven terrain. What was depicted in the video was the operation of the motorbikes on a relatively level gravel road. It was noted that the plaintiff’s husband took the motorbikes out of the truck and that the plaintiff played no role in that. Nevertheless, the videotapes do demonstrate that the plaintiff is able to continue at least some of her former activities, although perhaps not with the same intensity nor without pain.

As I’ve previously posted, Video surveillance does not in and of itself hurt a personal injury claim, overstating the effects of injuries does. It does not matter if you’re painting your house, lifting weights, or doing any number of physical activities that are caught on film. If you can be active and not aggravate your injuries that is a good thing. If, on the other hand, a personal injury claimaint tells others that they are limited and video surveillance shows otherwise, that could be very damaging. This goes to a person’s credibility. If a person is caught in a lie with respect to the effect of their injuries that will have a very negative effect on the value of an ICBC claim.

Rule 18-A and Your ICBC Injury Case

Written by admin on April 9, 2009. Posted in Civil Procedure, ICBC Spine Injury Cases. 38 Comments on Rule 18-A and Your ICBC Injury Case

One of the tools in a BC Trial Lawyers arsenal is BC Supreme Court Rule 18-A.
Rule 18-A permits claims to proceed to court via ‘summary trial’. In summary trials no live witnesses are called, instead the evidence is put before the Judge by way of affidavit evidence. From there the lawyers make their submissions and a ruling is made. By this method the time, and therefore the cost, of trial can be cut down significantly.
Rule 18-A is, however, not without its shortcomings. Without live witnesses taking the stand and getting faced down by a judge or jury it is difficult to weigh credibility. Where there are 2 different sides to the story and credibility plays a central role Rule 18-A is usually not an appropriate way to proceed to trial.
In personal injury litigation the credibility of the Plaintiff is usually a key issue at trial and for this reason Rule 18-A is rarely used. That said, this rule can be effective for certain ICBC and other personal injury claims and reasons for judgement were released today by the New Westminster Registry of the BC Supreme Court illustrating this fact.
In today’s case (Smith v. Bhangu) the Plaintiff was injured when she was 14 years old in a BC Car Crash. The issue of fault was admitted. This left the issue of quantum of damages (value of the ICBC case) to be decided by the trial judge.
Both lawyers agreed that Rule 18-A was appropriate for this case. The Plaintiff;s MRI showed a herniated lumbosacral disc injury. There was no dispute that the Plaintiff suffered from this condition, rather the key issue was whether the Plaintiff’s herniated lumbrosacral disc was related to the car accident. In agreeing that it was, Mr. Justice Grist made the following findings:

[21] I am satisfied that the evidence provides, on a balance of probabilities, a causal link between the motor vehicle collision and the lower back condition. I accept the Plaintiff’s evidence that the lower back complaints presented after a period of weeks or months from the motor vehicle collision and that there were no prior or subsequent events causing or contributing to the condition. Further, I accept that following the initial visit to the doctor, she did not present these continuing complaints for medical treatment until lower back spasms developed in 2004 and 2005. I also note Dr. Hershler’s comment that, based on the history and his physical examination, both the neck and lower back symptoms were referable to the motor vehicle collision.

[22] The upper back condition continues to be symptomatic from time to time, but as in many cases, has shown improvement, and the overall effect of the assessments in the medical reports is an expectation of further progress.

[23] The lower back condition, however, is more of a problem. The MRI shows a herniated lumbrosacral disk which continues to cause episodes of back pain, sometimes debilitating to the point of prompting attendance at an Emergency Ward. I accept that at age 14, this was not likely a degenerative condition and, as I have previously indicated, on the evidence, is most likely attributable to the collision.

General damages (money for pain and suffering and loss of enjoyment of life) were assessed at $65,000 and a further $80,000 was awarded for the Plaintiff’s diminished earning capacity to reflect the fact that her chronic condition will likely effect her vocationally over her lifetime.
What is remarkable about this case is that the trial took only one day. Often times when ICBC Claims with serious injuries proceed to trial the process takes numerous days or even weeks. Rule 18-A permitted this case to be adjudicated with one day of court time with costs savings to both parties.
While Rule 18-A is inaproppriate for many personal injury claims, this case shows that it can be used effectively in certain circumstances. When prosecuting an ICBC injury claim this rule should not be automatically brushed aside and should be considered in appropriate circumstances.

Personal Injury Claims and Privacy – Can ICBC access your Facebook Account?

Written by admin on April 8, 2009. Posted in Civil Procedure, ICBC Privacy Issues.

If you pursue a personal injury claim in the BC Supreme Court you will be bound by the Rules of Court with respect to production of relevant documents.
With our ever-expanding use of technology, more and more documents may become relevant in Injury Litigation. So, can computer records ever be relevant in personal injury claims?
Reasons for judgement were released today by the BC Supreme Court (Bishop v. Minichiello) dealing with this issue. In today’s case the Plaintiff allegedly suffered a brain injury as a result of the negligence of the defendants. The Defendants wished to analyze the Plaintiff’s computer hard drive to ‘determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning‘. The Plaintiff refused to produce his computer hard-drive and this resulted in a Court motion seeking an order compelling the Plaintiff to do so.
Mr. Justice Melnick granted the motion and ordered that ‘the parties agree on an independent expert to review the hard drive …to isolate and produce to counsel…the information sought or a report saying that the information sought is not retrievable.’.
In reaching this conclusion Mr. Justice Melnick engaged in the following analysis and application of the law:

IV. ANALYSIS

[46] Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of Court: Ireland at para. 6.

[47] Rule 26(1) requires disclosure of documents relating to any matter in question in the action. The decision of whether to grant an order requiring production under R. 26(10) is a discretionary one: Park at para. 15. The court has used its discretion to deny an application for the production of documents in the following two circumstances: firstly, where thousands of documents of only possible relevance are in question; and secondly, where the documents sought do not have significant probative value and the value of production is outweighed by competing interests such as confidentiality and time and expense required for the party to produce the documents: Park at para. 15. Additionally, privacy concerns should be considered in a determination under R. 26(10), where the order sought is so broad it has the potential to unnecessarily delve into private aspects of the opposing party’s life: Park at para. 21.

[48] Disclosure in the civil litigation context is largely informed by an inquiry into relevance and probative value. Relevance should be granted a broad scope: Peruvian Guano at 62. Relevancy is to be determined upon a description of the nature of the documents sought and a reasonable interpretation of the pleadings: Boxer at 359.

[49] Relevant to this particular application are the values enshrined in s. 8 of the Charter – the right to be secure against unreasonable search and seizure. Rule 26(10) confers no power to make an order that is really authorization for a search: Privest Properties Ltd. at para. 38.

[50] Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29. Metadata is a report of recorded data that is generated by computer software. It is not something created by the user; rather, it is based on what the user does with their computer. In both Park and Desgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use. However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26. Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.

[51] This threshold was found to be met in Chadwick. Despite agreeing with the plaintiffs that this was a case in which the hard drive was to be regarded as a file repository and not a document itself, Mr. Justice Myers held that such a distinction was not to be determinative of the application.

[52] Mr. Justice Bauman, for the Court of Appeal, held that leave to appeal the order should not be granted and the application was dismissed. The Court of Appeal stated that while an appropriate case may give rise to important issues such as privacy, solicitor-client privilege, expense, and time, this was not that case as Mr. Justice Myers’ order was of narrow scope.

[53] Similarly, the application at hand is of narrow scope. The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.

[54] Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours. The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook. But that is an evidentiary issue for trial. The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.

[55] It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents. This sentiment was approved in Chadwick. Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant. If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged).

[56] The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant. The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed. This is because he spends a substantial amount of time on Facebook chatting with this friend. The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.

V. CONCLUSION

[57] The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents. Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life. In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege. For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case. I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed.

[58] At the conclusion of the hearing on March 5, having been made aware that the passage of time was critical because of the potential for the memory of the plaintiff’s family computer to be “overwritten” with ongoing use, I directed that within two weeks of that date, an expert engaged by the plaintiff’s counsel, at the expense of the defence, produce two copies of the hard drive to be deposited with the court pending this ruling. One of those copies should be used for the analysis I have now ordered. The other copy should remain with the court as a backup to be accessed only with further order of the court.

This case should serve as a reminder that technology is rapidly changing the potential scope of document production in Injury Litigation. Lawyers and Plaintiff’s advancing BC Injury Claims need to be aware of the scope of documents that may be relevant and when doing so should not be so quick to overlook the potential relevance of electronically stored documents not only on a computer hard drive but also those that can be found on social networking sites such as Twitter, MySpace and Facebook.

More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Written by admin on April 7, 2009. Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Headache Cases, ICBC Wage Loss, ICBC Whiplash Cases. 54 Comments on More on ICBC Claims, Soft Tissue Injuries and Assessment of Damages

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, (Runghen v. Elkhalil) awarding a Plaintiff just over $147,000 in total damages as a result of injuries and damages sustained in a BC car crash.
The collision occurred in 2004 when the Plaintiff’s vehicle was rear-ended. The issue of fault was admitted leaving only an assessment of damages at issue at trial.
In awarding $40,000 for pain and suffering (non-pecuniary damages) Madam Justice Fenlon made the following findings with respect to the Plaintiff’s injuries:
[16] Based on the evidence of the experts, which is largely consistent, I find that Ms. Runghen suffered mild soft tissue injuries to her cervical and lumbar spine as a result of the accident; I further find that due to those injuries, she has headaches and chronic pain that has affected her ability to function both at home and at work. I also find that Ms. Runghen’s pain and related incapacity are likely to markedly improve once an appropriate treatment plan is put in place.
Madam Justice Fenlon engaged in a thoughful discussion at paragraphs 17-34 of the judgement which is worth reviewing for anyone ingterested in seeing some of the factors courts take into consideration when valuing pain and suffering in ICBC soft tissue injury claims.
The balance of the judgement deals largely with claims for past wage loss and diminished earning capacity. Awards were made under both of these heads of damages. The court found that the Plaintiff’s ability to work was diminished as a result of chronic pain and that this would likely continue for at least some time after the trial. In awarding $35,000 for diminished earning capacity the court engaged in the following analysis:

[50] As noted earlier in these reasons, I accept that the chronic pain experienced by Ms. Runghen to date has been a limiting factor in her ability to take on longer hours at work. I expect that limitation will continue to some extent over the next year, as she engages in a rehabilitation exercise program. After that time, it is probable that she will be able to increase the amount of time she works to be more in keeping with what she would have been doing prior to the accident. In coming to this conclusion, I recognize that Ms. Runghen had not established her career as a massage therapist and that we do not have a solid base line from which to work.

[51] I am mindful that there is no certainty possible in terms of predicting what will occur in the future; there is a possibility, even with the correct treatment for her injuries, that Ms. Runghen may still experience some limitations.

[52] Applying the considerations identified in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.), I find that Ms. Runghen is likely to be somewhat less capable, overall, of earning income from all types of employment and that, in particular, she is likely to be less capable of earning incoming from her chosen field of massage therapy. Ms. Runghen may have to consider retraining in another field or another area of specialization within massage therapy if she wishes to work full-time.

[53] In my view, given the potential for marked improvement in Ms. Runghen’s condition that both Dr. Cameron and Dr. McGraw identified in their reports, and based on Ms. Runghen’s own experience with a similar but truncated rehabilitation program with Karp, it would not be appropriate to apply the precise mathematical calculation of future income loss used by Ms. Runghen. Rather, this is an appropriate case to award a sum that takes into account the various contingencies and possibilities, without overcompensating Ms. Runghen by assuming the status quo and calculating a set wage shortfall over the next 36 year’s of her working life. I set that sum at $25,000.

[54] I find that Ms. Runghen will need approximately six months to put in place and complete a four-month exercise rehabilitation program. During that time, she will continue to work at her current level. I therefore award damages of $10,000 to cover loss of income during this period.

[55] In summary, I award Ms. Runghen a total of $35,000 for loss of future income and loss of earning capacity

$120,000 in Damages for “Gifted Athlete” Injured in BC Car Crash

Written by admin on April 6, 2009. Posted in ICBC Knee Injury Cases.

Reasons for judgment were released last week (Atkison v. Niles) by the BC Supreme Court awarding just over $120,000 to a ‘gifted athlete’ who was injured in a 2003 BC motor vehicle collision.

The Plaintiff was 16 at the time of the collision. He was a passenger in a vehicle involved in an intersection crash. As a result he suffered a knee injury which was expected to have some permanent consequences. The injury was diagnosed as either a posterior cruciate ligament tear or damage to the trochlea groove of the femur. As a result of this knee injury it was agreed that the Plaintiff had an increased risk of developing progressive osteoarthritis eventually requiring knee replacement surgery.

The Plaintiff played as catcher for an ‘elite’ league in White Rock at the time of the crash. By the time of trial in 2009 the Plaintiff was playing at the University of New Mexico as a first baseman and had aspirations of going pro after graduating.

In quantifying the Plaintiff’s pain and suffering (non-pecuniary damages) at $55,000 the Court noted the following facts:

[15] More significantly, he suffered a permanent injury to his left knee that has caused and will continue to cause intermittent pain, particularly with certain body positions. He will suffer the early onset of osteo-arthritis and require knee replacement surgery, likely in his 40’s. If he lived a sedentary life, as Dr. Hill recommends, the time for that surgery could be extended to the 60’s. However, the plaintiff is a gifted and active athlete. Extending the time for surgery by remaining inactive would constitute a drastic negative impact on his lifestyle. There is evidence that, because of the limited life span of a knee replacement, other surgeries may be required. While the defendant points to ongoing medical research which may provide other alternatives in future, that remains speculative at present.

[16] A significant impact for this plaintiff has been the impact on his baseball career. The evidence is that he was particularly suited to playing the position of catcher, a position he has not been able to occupy since the accident, nor will he ever. There is evidence, which I accept, is that he would have been most attractive to professional baseball had he been able to play that position. There is also evidence that, playing at first base, he does not have the size that professional baseball seeks for that position. There is also evidence that the knee injury had some impact on his foot speed, which would also diminish his chances of playing professionally.

In assessing the Plaintiff’s loss of earning capacity (future wage loss) at $100,000 the Court noted the following:

[20] The plaintiff will be graduating from university with a general degree. Thus he has no earnings history. As earlier stated, his goal has long been to play professional baseball. That has not been a unrealistic goal given his exceptional talent.

[21] However, he is less attractive to professional baseball because of the knee injury, both because of that fact and the fact that the injury required him to move permanently to a position where he is less valuable. The evidence of professional baseball scout Mr. Archer in that regard is consistent with common sense. Measuring that lessened opportunity is a particularly difficult exercise at his youthful age, except to say that it is real and not insignificant.

[22] If that dream is not realized, the plaintiff intends to seek a career as a firefighter or in a trade, as his brother and father have done. While there is no expert evidence on the issue, It is plain and obvious that the plaintiff, with his permanent knee injury, will be less attractive to future employers, particular those occupations requiring physical exertion.

[23] Finally, I must consider the very real possibility that the plaintiff will be forced to undergo at least one major knee surgery and the effect this will have on his employability and ability to earn income in the physically demanding careers most likely open to him.

The Plaintiff’s total damages were then reduced by 22.5% because he was not wearing his seatbelt at the time of the collision and this contributed to the severity/cause of his injuries.

More on Mitigation of Damages in ICBC Injury Claims

Written by admin on April 6, 2009. Posted in ICBC Spine Injury Cases, Uncategorized.

I’ve written previously about mitigation of damages in ICBC Injury Claims and reasons for judgment were released today by the BC Supreme Court (Ponipal v. McDonagh) applying this legal principle.

Mitigation, in general terms, means taking reasonable steps to reduce one’s damages. In a personal injury lawsuit mitigation usually revolves around taking reasonable steps in following the advice of treating physicians.

In today’s case the Plaintiff was injured in a 2007 intersection crash in Vernon, BC. The Plaintiff suffered various soft tissue injuries. In the course of her recovery an exercise and conditioning program was recommended to the Plaintiff. Mr. Justice Blair found that the Plaintiff ‘unreasonably failed to pursue the program’ and that doing so would have reduced the effect of her injuries.

As a result of this ‘failure to mitigate’ Mr. Justice Blair reduced the Plaintiff’s award for non-pecuniary damages (pain and suffering) of $35,000 by 10%. The discussion with respect to mitigation of damages was set out at paragraphs 25-29 which I set out below:

[25] The defence points to Mrs. Ponipal’s omission to embark on a structured exercise and conditioning program as recommended by Drs. Travlos and Reebye as constituting a failure to mitigate the physical difficulties arising from the collision. The defence submits that this omission by Mrs. Ponipal ought to result in the reduction of her general damages.

[26] Antoniali v. Massey, 2008 BCSC 1085 outlines a framework which I will follow in this case in determining whether the defendant has established that Mrs. Ponipal failed to mitigate her damages. The questions are as follows:

1. whether an exercise and conditioning program under a trainer’s guidance would have reduced or eliminated the effect of the injuries;

2. whether the reasonable plaintiff in Mrs. Ponipal’s circumstances would have followed such a program;

3. whether Mrs. Ponipal unreasonably failed to follow such a program; and

4. the extent to which Mrs. Ponipal’s damages would have been reduced if she had followed such a program.

[27] I am satisfied from the evidence of Drs. Travlos and Reebye, both being specialists in physical medicine and rehabilitation, that an exercise and conditioning program under a trainer’s guidance would have reduced the effect of Mrs. Ponipal’s injuries. I am further satisfied that a reasonable individual in Mrs. Ponipal’s circumstances would have undertaken such a program and that she unreasonably failed to pursue the recommended program. Mrs. Ponipal testified that there were two reasons why she did not embark on an exercise program, the first being that she wanted to know the results of the nerve conduction study suggested by Dr. Travlos before she undertook the exercise program. She expressed concern that the exercise program might worsen the numbness and tingling in her right arm and hand, negatively affecting her ability to play the piano. However, there is no evidence that she discussed that concern with Dr. Travlos or any other of her caregivers. The second reason she stated was the financial burden imposed in hiring a personal trainer. However, this is not a family devoid of means and Mrs. Ponipal’s husband Garry testified that they would have done that which was necessary to assist his wife’s recovery.

[28] The extent to which Mrs. Ponipal’s non-pecuniary damages would be reduced as a result of her failure to take the exercise and conditioning program is difficult to assess. In Antoniali,Preston J. reduced the pre-trial non-pecuniary damages by 15 percent and the post-trial non-pecuniary damages at 50 percent. In Job v. Van Blankers, 2009 BCSC 230, Ker J. reduced the plaintiff’s non-pecuniary damages by 10 percent to reflect her failure to mitigate her damages.

[29] I assess Mrs. Ponipal’s failure to mitigate by reducing her non-pecuniary damages by 10 percent.

ICBC Claims and Cross Examination of Experts at Trial

Written by admin on April 3, 2009. Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 50 Comments on ICBC Claims and Cross Examination of Experts at Trial

In ICBC Injury Claims that proceed to trial there are often 2 competing medical theories with respect to the cause and extent of injury. Typically Plaintiff’s rely on the opinions of their treating physicans and sometimes the opinions of Indepmendent Medical Examiners. ICBC, on behalf of the Defendant, usually rely on the opinions of an independent physician who examines the Plaintiff pursuant to Rule 30 of the BC Supreme Court Rules.
When the conflicting expert evidence is presented at trial the lawyers can cross examine the opposing expert(s) opinion. This process can be a powerful tool in helping the judge or jury decide whose opinion should be preferred and given more weight. What happens if the expert is not cross-examined? Does that experts opinion carry more weight with the court? Reasons for judgement were released today by the BC Supreme Court (Yip v. Chin) dealing with this issue.
In today’s case the Plaintiff sued for injuries cuased in a 2006 Car Crash which took place in Vancouver, BC. The Plaintiff suffered from a pre-existing degenerative condition and suffered soft tissue injuries in the crash. One of the key issues at trial was whether the Car Crash had any effect on the Plaintiff’s pre-existing degenerative arthritis.
The Plaintiff’s physicain feld that this pre-existing condition was aggravated by the car crash. The doctor hired by the Defendant, Dr. Schweigel, disagreed. Dr. Schweigel’s report was intorduced into evidence unchallenged by the Plaintiff. Ulimately the Court preferred Dr. Schweigel’s opinion on this narrow issue. Mr. Justice Voith summarized and applied the law as follows with respect to the failure to cross-examine an expert witness at trial:

[30] The evidence of both Dr. Lui and Dr. Schweigel was consistent in concluding that at the time of the Accident Mr. Yip suffered from some degenerative arthritis of the cervical spine. The two experts differed, however, on the significance of this pre-existing condition and on whether the Accident caused this condition to be aggravated.

[31] The plaintiff chose not to cross-examine Dr. Schweigel. This decision places different parts of Dr. Schweigel’s reports in different categories and requires different treatment by the court. Some portions of Dr. Schweigel’s reports stand uncontradicted in that no part of the evidence led by the plaintiff takes issue with the opinions expressed by Dr. Schweigel. Other portions of his reports are inconsistent, for example, with the report of Dr. Lui or with the evidence of Dr. Lui and Dr. Leung.

[32] For lay witnesses, the case of Browne v. Dunn (1893), 6 R. 67 (H.L.) provides well understood guidance on the consequences that flow from the failure of a party to cross-examine on a given issue or to put given propositions to a witness. The rule arising from that case is one which is designed to ensure that witnesses and the parties are treated fairly.

[33] Failure to cross-examine an expert on a contested issue gives rise to additional concerns or difficulty. The very object of proffering expert evidence is to assist the trier of fact with the necessary scientific basis upon which to assess evidence. Inherent in the fact that evidence has been tendered by an expert, is the proposition that the trier of fact is generally neither conversant nor familiar with the subject matter of the evidence and lacks the independent means by which to weigh or measure the merits of two competing views.

[34] In this instance, for example, Dr. Lui expressed the view that Mr. Yip’s ongoing degenerative problems of the spine were likely aggravated by the Accident. This conclusion is apparently based on differences that exist in an initial x-ray taken in July 2006 which showed degenerative changes at C6-7 only and a subsequent CT scan performed on October 2007 which showed degenerative changes involving C3-4, C4-5, and C5-6 as well.

[35] Dr. Schweigel’s report, conversely, expresses the view that these changes are attributable to the additional sophistication of the CT scan. In Dr. Schweigel’s view, a CT scan will routinely pick up abnormalities which are missed by an x-ray. Dr. Lui, in his cross-examination, firmly disagreed with this conclusion. The court did not have benefit of any further explanation from Dr. Schweigel. The trier of fact is thus left with two competing views, one of which, though contradicted, remains unchallenged by cross-examination.

[36] No inflexible rule can be established as to the significance of a party failing to cross-examine an expert. Sometimes a party will be aware that the expert will not resile from his position and cross-examination would be futile. Thus, in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44 (C.A.) at 49, the Court said in relation to a notional cross-examination, “It may be a mere show. The law of evidence does not require counsel to engage in a charade”.

[37] In this instance, I believe it is appropriate to attach some weight or significance to the fact that Dr. Schweigel’s report was introduced without any part of its contents being tested further. This is not a case of a party failing to cross-examine on a particular portion of the report. This is an instance of the plaintiff deciding to leave untested all of the various opinions which are offered in relation to a number of issues, notwithstanding the fact that such opinions are often at odds with the evidence tendered by the plaintiff.

ICBC Injury Claims and Fault

Written by admin on April 2, 2009. Posted in ICBC Liability (fault) Cases.

If a Court finds that 2 or more people are responsible for a motor vehicle collision in British Columbia the Court must ‘apportion’ liability as between them. How does the court do this? What factors are considered when determining the percentage of blame to put on each at fault party?
Reasons for judgement were released today by the BC Supreme Court (Mills v. Seifred) addressing this topic.
Today’s case involved a tragic accident between a motorcycle and a dump truck on September 1, 2005 in Langley, British Columbia. The truck turned in front of the motorcycle driver. It appears, based on the style of cause, that the motorcycle driver was killed as a result of this impact.
The court found that the motorcyclist was careless and contributed to the collision. He was travelling in a 60 kmph zone and the court found that he was travelling some 90 kmph at the time of impact. The court determined that this contributed to the collision because “speed removes options for effective collision avoidance manoeuvres….there can be no doubt that (the Plaintiff’s) excessive speed played a causative role in the occurrence of the accident“.
The court also found that the Dump Truck Driver was careless because he ‘did not take sufficient time or care to keep a sharp lookout at the on coming traffic just before committing to the left turn.’
In determining that the Dump Truck driver was 65% to blame for the crash and the Plaintiff 35% the Court summarized and applied the law as follows:

[97] Where, as here, the fault of two or more persons combine to cause a loss, liability will be apportioned. Apportionment is governed by the Negligence Act, R.S.B.C. 1996, c. 333. The relevant provisions are set out below:

s.1 Apportionment of liability for damages

(1) If by the fault of 2 or more persons damage or loss is caused to one or more of them, the liability to make good the damage or loss is in proportion to the degree to which each person was at fault.

(2) Despite subsection (1), if, having regard to all the circumstances of the case, it is not possible to establish different degrees of fault, the liability must be apportioned equally.

(3) Nothing in this section operates to make a person liable for damage or loss to which the person’s fault has not contributed.

s.4 Liability and right of contribution

(1) If damage or loss has been caused by the fault of 2 or more persons, the court must determine the degree to which each person was at fault.

…

s.6 Questions of fact

In every action the amount of damage or loss, the fault, if any, and the degrees of fault are questions of fact.

[98] In assessing apportionment, the court examines the extent of blameworthiness, that is, the degree to which each party is at fault, and not the degree to which each party’s fault has caused the loss. Put another way, the court is not assessing degrees of causation, rather, it is assessing degrees of fault: Cempel v. Harrison Hot Springs Hotel Ltd., [1997] 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 [Cempel]; Aberdeen v. Langley (Township), 2007 BCSC 993 [Aberdeen]; reversed in part, Aberdeen v. Zanatta, 2008 BCCA 420.

[99] In Alberta Wheat Pool v. Northwest Pile Driving Ltd., [2000] 80 B.C.L.R. (3d) 153, 2000 BCCA 505, Finch, J.A. (now the Chief Justice), for the majority of the Court of Appeal, explained this important principle at paras. 45-47:

In my view, the test to be applied here is that expressed by Lambert, J.A. in Cempel, supra, and the court’s task is to assess the respective blameworthiness of the parties, rather than the extent to which the loss may be said to have been caused by the conduct of each.

Fault or blameworthiness evaluates the parties’ conduct in the circumstances, and the extent or degree to which it may be said to depart from the standard of reasonable care. Fault may vary from extremely careless conduct, by which the party shows a reckless indifference or disregard for the safety of person or property, whether his own or others, down to a momentary or minor lapse of care in conduct which, nevertheless, carries with it the risk of foreseeable harm.

[100] In Aberdeen, Groves J. provided insight into the difficulty that the court faces in quantifying the concept of blameworthiness under the Negligence Act. At para. 62 he endorsed the enumeration of factors in assessing relative degrees of fault set out by the Alberta Court of Appeal in Heller v. Martens, as follows:

1. The nature of the duty owed by the tortfeasor to the injured person…

2. The number of acts of fault or negligence committed by a person at fault…

3. The timing of the various negligent acts. For example, the party who first commits a negligent act will usually be more at fault than the party whose negligence comes as a result of the initial fault…

4. The nature of the conduct held to amount to fault. For example, indifference to the results of the conduct may be more blameworthy… Similarly, a deliberate departure from safety rules may be more blameworthy than an imperfect reaction to a crisis…

5. The extent to which the conduct breaches statutory requirements. For example, in a motor vehicle collision, the driver of the vehicle with the right of way may be less blameworthy…

[Authorities omitted.]

[101] To the foregoing factors, Groves J. added the following at para. 67:

6. the gravity of the risk created;

7. the extent of the opportunity to avoid or prevent the accident or the damage;

8. whether the conduct in question was deliberate, or unusual or unexpected; and

9. the knowledge one person had or should have had of the conduct of another person at fault.

[102] After surveying the authorities, Groves J. summarized at para. 67 the approach to be taken in assessing the relative degree of blameworthiness of the parties:

Thus, the key inquiry in assessing comparative blameworthiness is the relative degree by which each of the parties departed from the standard of care to be expected in all of the circumstances. This inquiry is informed by numerous factors, including the nature of the departure from that standard of care, its magnitude, and the gravity of the risk thereby created.

[103] On appeal, the decision in Aberdeen in relation to the issue of contributory negligence was remitted for retrial. However, the Court of Appeal did not criticize Mr Justice Groves’ careful summation of the governing legal principles on apportionment.

[104] Mr. Cavezza continued in the oncoming lane at an excessive speed in order to pass a trail of vehicles long after the dividing line for eastbound traffic had become solid. He persisted in doing so on his approach to the Eastbound Hill, which would have hampered his view of oncoming traffic, and after the appearance of double solid lines which would tell him that the oncoming traffic had impaired visibility his way. He did not take advantage of the openings in the line of eastbound vehicles to merge earlier; had he done so, there would have been no accident. Instead, Mr. Cavezza chose to merge near the brow of the Eastbound Hill and once in the lead, maintained an excessive speed. In assessing the degree of Mr. Cavezza’s blameworthiness, I have borne in mind the fact that traffic as a whole speeds along that segment of 16^th Avenue. Even so, it cannot be overlooked that Mr. Cavezza’s deliberate conduct violated, in a substantial way, the expected standard of care of a user of that road in those circumstances. He showed a reckless disregard for the safety of fellow users and created a substantial level of risk for himself and others.

[105] Turning to Mr. Seifred’s fault, the law imposes upon him a very high degree of care to observe caution in crossing double solid lines. Although he was not speeding, he did not come to a complete stop or likely even hesitate prior to crossing the oncoming lane and cut the driveway at a 45 degree angle. Mr. Seifred travelled 16^th Avenue frequently and is taken to know that speeding vehicles along that route were more the rule than the exception. Had he kept the sharp look-out reasonably expected of him, he would have seen Mr. Cavezza advancing in the eastbound lane and would not have initiated his turn in such patently unsafe circumstances. Mr. Seifred breached his duty to take reasonable care to a severe degree and created a grave risk for himself and a fatal one for Mr. Cavezza.

[106] In all the circumstances, I consider Mr. Seifred’s conduct more blameworthy than Mr. Cavezza’s. I apportion liability 65% against Mr. Seifred and 35% against Mr. Cavezza.

BC Personal Injury Claims and the Cost of Litigation

Written by admin on April 2, 2009. Posted in Civil Procedure, Uncategorized.

Personal Injury Claims can be very expensive to prosecute. There are many typical expenses involved such as court filing fees, process servers, administrative expenses and the costs associated with gathering relevant information and documents. However, by and far the greatest expenses associated with prosecuting a Personal Injury Claim are expert witness fees.
Expert witnesses play a role in almost every Personal Injury and ICBC Injury Claim. Typical expert witnesses include family physicians, treating therapists such as chiropractors and physiotherapists, specialist physicians such as orthopaedic surgeons and physical medicine doctors. In serious cases where the effects of the injury are permanent often times economists, future cost of care experts and vocational consultants are retained as well.
All of the above professionals are entitled to charge for their involvement as an expert witness in an ICBC Injury Claim and these costs can be significant. Reasons for judgement were released yesterday (Narvaez v. Zhang) illustrating just how expensive an expert witness can be in a case involving serious injuries.
In yesterdays case the Plaintiff suffered a serious brain injury as a result of a 2004 collision when she was struck as a pedestrian in Richmond, BC. The case settled before trial for $850,000 plus costs and disbursements. One of the disbursements incurred by the Plaintiff’s lawyer was associated with expert witness reports by a well respected economist.
The economist had to prepare ‘several different future income loss assessments and different cost of future care calculations in order to show losses based on (various) plans‘. In preparing these reports the economist charged about $10,600.
The Defendants refused to pay this account in the settlement claiming it was excessive. A motion was brought before Registrar Blok of the BC Supreme Court to determine whether this expense was reasonable in the prosecution of the injury claim. In concluding that this was a reasonable expense Registrar Blok found as follows:

[19] Here, the question of what the plaintiff had intended as a career path was very much in dispute: in one version of the evidence the plaintiff was going to train as a registered nurse and move to the United States and in another version she would achieve lesser credentials (e.g., licensed practical nurse) and probably would not be able to emigrate to the U.S. There was evidence going both ways. The evidence of the plaintiff’s U.S. immigration plan was not fanciful or unreasonably speculative (in which case the cost might be properly disallowed), and there was a reasonable basis to argue that her examination for discovery admission ought not to be accepted at face value. A registrar considering whether a disbursement was necessarily or properly incurred need only decide that there was a sufficient basis to incur the cost of a disbursement relating to a certain claim; it is not the role of the registrar to decide whether that claim would have succeeded.

[20] For these reasons I conclude that the evidence supporting the claimed disbursement is admissible and that it was reasonable for plaintiff’s counsel to have asked the economist to provide opinion evidence on U.S.-based scenarios.

[21] The defendants also argue that the scope of the economist’s reports is excessive in that he was asked to opine on six different scenarios in circumstances where it would have been sufficient to set out just a couple of the more likely scenarios and to then provide a multiplier for the jury to use (for this was to have been a jury trial) to assess damages for any other scenarios the jury concluded would be most likely. Similarly, the economist was also asked to do six different scenarios for the cost of future care (as distinct from future income loss) and, again, the defendants argue that a multiplier and a table would have been sufficient for the purpose.

[22] In reply, the plaintiff noted that the economist was asked to do more than provide mere arithmetic, he was asked to compile statistical information on earnings of registered nurses both in Canada and the U.S., the earnings of licensed practical nurse and residential care aides, the likely amount of her residual earnings (that is, her likely earnings given her cognitive impairment) and to prepare projections of lost earnings for those positions using two different start years. As for the cost of future care, had the situation been straightforward (e.g., based on predictable costs that would be incurred in each and every year) it might have been appropriate to have a multiplier with a table or two, but in this case some of the care items were intermittent or temporary, and some were based on possibilities that she would require more extensive care later in life. It was thus submitted that it would not be reasonable to expect a jury to use a multiplier or table in a fashion that would properly address these cost variations.

[23] I have reviewed the reports and accounts of the economist in some detail and conclude that in the circumstances of this particular case it was proper for counsel to ask the economist to set out his opinion on future income loss and future care costs using the different scenarios he did. There were several employment possibilities for the plaintiff and she might either have ended up in the United States or stayed in Canada, and there was the question of the income that she was now capable of earning in her impaired state. Similarly, for the cost of future care I conclude that it was reasonable for counsel to set out relatively understandable numbers for presentation to a jury in light of the fact that a number of the future care items were uncertain, intermittent or temporary. I do not think it inappropriate to conclude that a jury might have difficulty using a mere multiplier or table in light of these sorts of complications.

[24] In the result, I allow in full the amounts claimed for the costs of the economist’s reports.