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ICBC Claims and Cross Examination of Experts at Trial

Written by admin on . 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 . 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 16th 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 16th 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 . 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.

ICBC Injury Claims and Pre-Existing Conditions

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases. 48 Comments on ICBC Injury Claims and Pre-Existing Conditions

Imagine being injured as a result of the carelessness of another in a BC Car Crash.  You advance an ICBC tort claim for compensation for your injuries and loss.   You are able to come to an agreement with ICBC with respect to the value of your injuries and losses but then ICBC wants to reduce the the pain and suffering settlement by 25% to account for a pre-existing medical condition that you have.  Is this fair?
The answer depends on the nature and severity of the pre-existing condition.  BC Courts generally categorize pre-existing conditions affected by traumatic injury in 2 ways: the ‘thin skull‘ category and the ‘crumbling skull‘ category.  In a thin skull situation a Plaintiff has a pre-existing condition that makes them susceptible to injury however the condition would not otherwise become symptomatic absent the trauma.  In thin skull situations the pre-existing condition does not reduce the value of the claim.  The thin skull principle is sometimes referred to as the ‘you take your victim as you find them‘ principle meaning it is no defence to an injury claim to say that a healthier victimn with no pre-existing condition would have suffered less injury.
This can be contrasted with the ‘crumbling skull’ situation where the Plaintiff has a pre-existing condition which is active or likely to become active even without the trauma.  In crumbling skull situations the value of the injuries and losses must be reduced to reflect the fact that a Plaintiff would have likely had some problems in any event.
Reasons for judgement (Gohringer v. Hernandez-Lazo) were released today by the BC Supreme Court explaining and applying these principles.
In today’s case the Plaintiff was injured when her car was struck head on by a street sweeper in April, 2005.  As a result of this significant BC Car Crash she suffered various injuries.  The Plaintiff did, however, have pre-existing back and neck injuries.  In valuing the Plaintiff’s pain and suffering at $75,000 Madam Justice Russell explained and applied the law of thin skull v. crumbling skull as follows:

Pre-existing condition and independent intervening event

[90]            It is trite law that the general purpose in assessing damages is to restore the plaintiff to their original, or pre-accident, position.  Through an award of damages a plaintiff is entitled to be restored to his or her original position, but they are not entitled to be placed in a better position:  Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 32, 140 D.L.R. (4th) 235.   Generally speaking, this requires the court to determine the plaintiff’s original position and position subsequent to the negligent act, and award damages to reflect the difference:  Athey at para. 32; Barnes v. Richardson, 2008 BCSC 1349 at para. 84.  In situations where the plaintiff has a pre-existing condition the thin skull or crumbling skull rule must inform the court’s assessment of damages.  

[91]            In a thin skull situation, the plaintiff’s pre-existing condition has not manifested, or in other words is not active or symptomatic, prior to the event in question.  As the tortfeasor takes his or her victim as they find them, the tortfeasor is liable for all injuries even if the injuries are “unexpectedly severe owing to a pre-existing condition”, as a result of their actions:  Athey at para. 34. 

[92]            In a crumbling skull situation, as in this case, the plaintiff has a pre-existing condition which is active, or likely to become active.  The pre-existing condition “does not have to be manifest or disabling at the time of the tort to be within the ambit of the crumbling skull rule”:  Barnes at para. 89, citing A. (T.W.N.) v. Clarke, 2003 BCCA 670, 22 B.C.L.R. (4th) 1 at para. 62. In crumbling skull situations, the defendant is only liable for damages caused by the accident and responsible for returning the plaintiff to their original position.  As Major J. stated in Athey: the defendant is liable for the additional damage but not the pre-existing damage: at para. 35.   The defendant is therefore not liable for the effects of the pre-existing condition that the plaintiff would have experienced in any event: A. (T.W.N.) at para. 52.  If there is a “measurable risk” that the pre-existing condition would have impacted the plaintiff in the future then, regardless of the defendant’s negligence, a court can take this into account in awarding damages: at para. 35. 

[93]            In addition, the defendant claims an independent intervening event, subsequent to the Accident, also had significant impact on the plaintiff.  An independent intervening event is an unrelated event, such as disease or a non-tortious accident, that occurs after the plaintiff is injured.  The impact of such events is taken into account in the same manner as pre-existing conditions: Barnes at para. 96.  Thus, the plaintiff is only entitled to damages which flow from the difference between his or her original position and their “injured position”: Athey at para. 32.  If the unrelated event would have impacted the plaintiff’s original position adversely, the “net loss” attributable to the accident at issue will not be as great and damages will be reduced proportionately: Barnes at para. 96.

[94]            I note that our Court of Appeal has stated that a reduction in damages to reflect the impact of independent intervening events or pre-existing conditions applies equally to non-pecuniary and pecuniary damages:  A. (T.W.N.) at paras. 36-37; Barnes at para. 90. 

[95]            In this case the defendant does not contest that the plaintiff suffered injuries as a result of the Accident.  The defendant does however contest the severity of those injuries and the impact that those subsequently had on the plaintiff’s physical and emotional health, as well as her employment situation. 

[96]            The plaintiff had pre-existing back and neck injuries and suffered a knee injury subsequent to the Accident.  At issue is the impact of such injuries on the plaintiff’s ability to continue her position as a skating instructor, or whether the injuries resulting from the Accident were responsible for causing her to change positions.

[97]            The pre-existing conditions and knee injury caused the plaintiff to miss a number of months of work when they occurred.  I accept the evidence contained in Dr. MacIntosh’s report (January 26, 2005) that the plaintiff’s pre-existing neck and back injuries would have materially impacted the plaintiff’s ability to continue working as a skating instructor, given the physical demands of that position.  Likewise, I find the knee injury would have further impacted her ability to continue that job into the future.  Prior to the Accident, the plaintiff had complained, of neck pain resulting from teaching four classes in one day.  Further, the plaintiff left her position at Sportsplex soon after she returned to work following her knee injury as she was not able to perform her duties to the same level as previously.

[98]            I accept however, that the injuries from the Accident also impacted the plaintiff at work.  The evidence indicated that a number of her duties at Sportsplex aggravated the injuries suffered in the Accident.  While the evidence did not demonstrate that those injuries alone caused the plaintiff’s departure from Sportsplex, the evidence did show that the plaintiff’s abilities to perform her job duties were adversely affected as a result.

[99]            I conclude there was a real and significant chance that the plaintiff’s pre-existing injuries and the injury suffered after the Accident would have shortened the plaintiff’s career as a skating instructor, regardless of the injuries from the Accident.  These injuries ultimately affect the plaintiff’s original position and must be taken into account in the assessment of damages.  The risk that these injuries would have reduced the plaintiff’s chosen career will be taken into account based on its relative likelihood in determining the overall assessment of damages:  McKelvie v. Ng, 2001 BCCA 341, 90 B.C.L.R. (3rd) 62 at para. 17.  Accordingly, non-pecuniary damages should be reduced by 10% to reflect such a risk. 

[100]        In assessing all of the relevant evidence, I conclude the injuries continue to adversely affect the plaintiff in a number of ways and award $75,000 for non-pecuniary damages.  I will deduct 10% as a contingency to reflect the plaintiff’s pre-existing condition and the effect of the subsequent knee injury.

Can Future Wage Loss be Awarded in an ICBC Claim When There is no Past Wage Loss?

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

The answer is yes and reasons for judgement were released yesterday (Schnare v. Roberts) by the BC Supreme Court illustrating this fact.  In yesterday’s case the BC Supreme Court awarded the Plaintiff just over $240,000 in total damages as a result of a 2005 BC Motor Vehicle Collision.   
The Plaintiff was a school teacher and was on her way to school when her vehicle was rear-ended.  The crash was significant enough that the Plaintiff’s vehicle was pushed into the vehicle in front of hers.
The Plaintiff suffered various injuries and these and their effect on the Plaintiff’s life are summarized at paragraphs 56-57 as follows:

[56]            Based on the evidence of Ms. Schnare, Dr. Fagan, Mr. McLean and Dr. van Rijn, I conclude that, in the accident on March 14, 2005, Ms. Schnare suffered soft tissue injuries to her neck, upper, mid and lower back, including in and around her sacroiliac region.  As a result of the injuries, Ms. Schnare was left with a mobile sacroiliac joint.  I conclude further that the defendants’ negligence caused Ms. Schnare’s injuries.  While, as of the trial, Ms. Schnare had occasional neck pain attributable to the accident, I find that the most serious result of the injuries Ms. Schnare suffered in the accident has been the mobility in her sacroiliac joint, the pelvic misalignment and rotation, and the associated back pain.  The pelvic rotation was observed and identified (by Mr. McLean) at Ms. Schnare’s first physiotherapy assessment on March 31, 2005 (approximately two weeks after the accident).  Dr. van Rijn’s examination disclosed that Ms. Schnare had a mobile right sacroiliac region and he identified Ms. Schnare’s sacroiliac region as the probable pain generator and source of Ms. Schnare’s back pain.

[57]            I find that, as a result of her injuries, Ms. Schnare continues to suffer some neck pain and significant back pain, and that this pain – particularly her back pain – limits and interferes with most normal and routine activities of her daily life.  Based on the evidence, particularly from Mr. McLean, Ms. Schnare’s condition has improved since the accident, as a result of physiotherapy and Ms. Schnare’s own efforts.  However, I accept the opinion of Dr. van Rijn and conclude that Ms. Schnare’s accident-related symptoms caused by her injuries have resulted in some permanent disability.

In justifying an award for non-pecuniary damages (pain and suffering) for $85,000 the Court highlighted the following facts:

Ms. Schnare’s injuries have had a very significant effect on the quality of Ms. Schnare’s life.  She has back pain regularly, and from time to time flare-ups of severe pain; she fatigues easily; she is unable to enjoy activities such as hiking or car trips with her family; she is unable to participate in her children’s activities (including homework and sports) in the manner and to the degree she would like; household chores are more difficult; she feels like a spectator on family activities, rather than involved and engaged; her intimate relationship with her husband has changed; and her strong desire to pursue a career as a kindergarten teacher has been frustrated.

[63]            Taking into account in particular Ms. Schnare’s evidence, the evidence of Mr. Schnare, Ms. Schultz and Ms. Brebuck concerning Ms. Schnare’s circumstances before and after the accident, and the opinions stated by Dr. van Rijn, I conclude that an award of $85,000 is appropriate in the circumstances.

From there the court went on to discuss the law of diminished earning capacity (future wage loss).  Despite only having a minimal past wage loss the Court awarded the Plaintiff $125,000 for diminished earning capacity.  In doing so the Court summarized and applied the law as follows:

 

[64]            The principles governing a claim for loss of earning capacity are set out in Rosvold v. Dunlop, 2001 BCCA 1, 84 B.C.L.R. (3d) 158.  There, the court confirmed that, “Where a plaintiff’s permanent injury limits him in his capacity to perform certain activities and consequently impairs his income earning capacity, he is entitled to compensation.  What is being compensated is not lost projected future earnings but the loss or impairment of earning capacity as a capital asset.”  The standard of proof to be applied when evaluating hypothetical, future events that may affect an award is simple probability, not the balance of probabilities.  Huddart J.A. continued:

10.     The trial judge’s task is to assess the loss on a judgmental basis, taking into consideration all the relevant factors arising from the evidence:  Mazzuca v. Alexakis, [1994] B.C.J. No. 2128 (S.C.) at para. 121, aff’d [1997] B.C.J. No. 2178 (C.A.). Guidance as to what factors may be relevant can be found in Parypa v. Wickware, supra, at para. 31;Kwei v. Boisclair (1991), 60 B.C.L.R. (2d) 393 (C.A.); and Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.) per Finch J. They include:

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

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

3.    whether 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.    whether the plaintiff is less valuable to himself as a person capable of earning income in a competitive labour market.

11.     The task of the court is to assess damages, not to calculate them according to some mathematical formula:  Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 (C.A.). Once impairment of a plaintiff’s earning capacity as a capital asset has been established, that impairment must be valued.  . . . The overall fairness and reasonableness of the award must be considered taking into account all the evidence.

[65]            Ms. Schnare seeks damages in the sum of $345,600 for lost earning capacity.  This sum is based on a full-time salary of $64,000 per year; on the assumption that, because of her injuries, Ms. Schnare is permanently unable to work more than 4 days per week; and on the further assumption that, but for her injuries, she would begin teaching full time in about 2010 and continue until age 65, a period of 27 years (20% of $64,000 = $12,800 multiplied by 27 years = $345,600).

[66]            When Ms. Schnare worked a full-time week in the fall of 2008, she determined that she could not keep it up, and that she needed the one day a week to recuperate.  Other than that one week, Ms. Schnare last taught full time during the school year September 2000 to June 2001.  At that time, the Schnares’ daughter was about two, and Ms. Schnare was pregnant with their son.  As noted above, the Schnares has discussed Ms. Schnare returning to work full time when their daughter entered grade 7.  Of course, that Ms. Schnare would in fact have returned to work full time once her daughter entered grade 7, but for the accident, is not a certainty.

[67]            Dr. van Rijn addressed the topic of Ms. Schnare’s potential “occupational restrictions” in his June 5, 2008 report.  He noted Ms. Schnare’s plans to move to grade 1, rather than teaching kindergarten, and observed that “some of the job requirements (including sitting on the ground) may not be as necessary, which will hopefully allow her to manage more easily.”  He continued (italics added):

She has permanent restrictions with respect to jobs requiring increasing physical effort and would be competitively unemployable in such work when compared to an able-bodied woman with similar interests and skill sets.  This represents a permanent loss in her work capability and has caused her to suffer a work handicap as a result of her injuries.  She is potentially less desirable an employee to perspective employers as a result of her accident related symptoms.

[68]            However, Dr. van Rijn does not say anywhere in his report that Ms. Schnare would be unable, because of her injuries, to work full-time as a teacher.  I compare what Dr. van Rijn says with the evidence referred to in Fox v. Danis, at para. 97, where the court had the benefit of opinion evidence to the effect that the plaintiff had lost the capacity to work full-time.  While Ms. Schnare may have restrictions, and therefore be less employable or “competitively unemployable,” with respect to “jobs requiring increasing physical effort,” Dr. van Rijn does not identify teaching grade 1, or indeed teaching any particular school grade, as a job of this type.  In addition, there is no evidence that Ms. Schnare has ever considered any type of work other than teaching.

[69]            I consider that the approach taken by Ms. Schnare with respect to damages for loss of earning capacity is excessively mathematical.  In my view, it seeks to have Ms. Schnare compensated as if it were certain that she would never work full-time again, and her approach produces a result that, overall, is neither fair nor reasonable, taking into account all of the evidence.  On the other hand, based on the evidence, I do not accept the defendants’ submission that Ms. Schnare should receive no award for loss of capacity to earn income.

[70]            In my view, based in particular on Ms. Schnare’s evidence and on the opinions stated by Dr. van Rijn in his June 5, 2008 report, Ms. Schnare has suffered some impairment of her earning capacity as a result of her injuries.  She has been rendered less capable overall from earning income from all types of employment available to an individual qualified as a teacher, and she has lost the ability to take advantage of all job opportunities that might otherwise have been open to her had she not been injured.  Specifically, Ms. Schnare has lost the ability to take advantage of the opportunity to work full-time as a kindergarten teacher, taking into account the physical demands of that job.  On the other hand, I do not consider that the evidence supports the conclusion that, as a result of her injuries, Ms. Schnare has lost the ability generally to take advantage of opportunities to work full-time as a teacher, should she choose to do so in the future.  In that light, the difference between Ms. Schnare’s likely future income had the accident not occurred and her income now that the accident has occurred may well be small.

[71]            Accordingly, Ms. Schnare is entitled to damages, but the amount should be more modest than what her counsel has submitted.  I conclude that the damages for Ms. Schnare’s loss of earning capacity should be assessed at $125,000.

The Health Care Costs Recovery Act and Your BC Personal Injury Claim

Written by admin on . Posted in Civil Procedure, Tort Reform.

Very important legislation is coming into force in April 1, 2009 that applies to many BC Personal Injury Claims.   The new legislation is the Health Care Costs Recovery Act (and the Health Care Costs Recovery Regulation) and all BC Personal Injury Lawyers and people advancing their own BC Personal Injury Claims need to be familiar with this new law.
In a nutshell this act applies to all BC Injury Claims except for claims where the defendant is insured with ICBC, litigation under the Tobacco Damages and Health Care Costs Recovery Act and WCB Claims.   If you are advancing an applicable BC Personal Injury Claim after April 1 and are covered by MSP you must advance a claim for the cost of past and future health care services.  
Section 3 of the act requires that people with applicable claims, whether or not they have a lawyer, must “include a health care services claim in that legal proceeding”
Section 4 requires Notice to the Government after you start your lawsuit in BC Supreme Court.  This applies whether or not you have a lawyer for your BC Personal Injury Claim.  Spcifically this section states that the government must be notified of applicable claims “within 21 days after commencing a legal proceeding referred to in section 3(1), written notice of the legal proceeding must be given to the government“.
Section 5 of the act is perhaps the most important which stats that “a legal proceeding referred to in section 3(1) must not be discontinued or dismissed by consent unless the consent of the minister is filed with the court.”
This Act requires people with applicable BC Personal Injury Claims to advance a claim on behalf of the Government for recovery of their past and future health care costs and to not settle a claim without the governments permission first.  
In addition to the above the Act has some unique sections requiring co-operation with the government and giving the government significant power to intervene in current lawsuits.  This law will change the way BC Personal Injury Claims are prosecuted and advanced by lawyers and non-lawyers and it is vital that people become quickly familiar with this new law.
One of the biggest concerns I have as a BC Personal Injury Lawyer is that this Act will create a lot of red tape in the settlement of BC personal injury claims.  I have developed a pro-active practice of notifying the government of applicable claims even before the legislation requires to minimize the red tape that will now be involved with claim settlement.  If you are advancing an applicable claim, with or without a lawyer, I suggest you do the same because the Governments involvement in the settlement process will undoubtedly add delay to the settlement of many BC personal injury claims.
If you have an active BC Personal Injury Claim that is not settled by April 1, 2009 or if you advance a Claim after April 1, 2009 you need to comply with this new law.  If you have a lawyer you should make sure that your Injury Claim Lawyer is familiar with this new law as it may apply to your claim.  Lastly, if you are advancing your own Injury Claim and have questions about how this will effect your claim seek legal advice promptly because this act imposes significant obligations that must be complied with.

$63,000 Awarded for Soft Tissue Injuries and Chronic Pain in ICBC Claim

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

Reasons for judgement were released this week by the BC Supreme Court (Atwater v. Reese) awarding a Plaintiff just over $63,000 in total damages as a result of a 2006 motor vehicle collision.
The Plaintiff was a pedestrian who sustained injuries when struck by a car.  In my experience ICBC often denies liability in these circumstances with a hope of having the court find the pedestrian at least partially at fault for not keeping a proper lookout.  In this case the ICBC Defence Lawyer argued that while the motorist was at fault the Pedestrian was contributorily negligent.  The first part of the judgement deals with this allegation and in finding the driver 100% responsible Mr. Justice Macaulay stated as follows:

[16]            I do not accept that the plaintiff was negligent in failing to watch the car as she walked in front of it.  Nor do I accept that she could have avoided the accelerating car if she had been watching.  Once in front of the car, the pedestrians were within a foot or so of the car.  There is no evidence to support the contention that the plaintiff, who was walking ahead of her sister, could have avoided the impact in the circumstances.

[17]            The impact occurred because the defendant was going through the motions of driving without actually paying any attention to what was there by way of pedestrian hazard.  I find that the defendant is entirely responsible for the accident.

In assessing the Plaintiff’s non-pecuniary damages at $50,000, Mr. Justice Macaulay made the following findings with respect to her injuries and prognosis:

[38]            I am satisfied that the plaintiff suffers from chronic pain but I share the view of the various professionals that her condition is still amenable to improvement provided she increases her tolerance for recreational activity.  She gave up too easily and must try harder so that she can avoid the physical and emotional downward spiral associated with inactivity.  I am also, however, satisfied that the plaintiff’s pain experience is real and not otherwise subject to conscious psychological control.

[39]            There is, accordingly, a risk that the pain will continue albeit, hopefully, at a lesser level with appropriate rehabilitation.  I do not expect her general pain level to increase nor is the plaintiff at risk of harming herself by increasing her activity level.

[40]            To the plaintiff’s credit, she missed minimal time from work after the accident.  This may have unwittingly contributed to her slow recovery and certainly affected her ability to participate in non-work activities.  She now has moved to more sedentary office work and is not waitressing as much.  The continuing waitressing she does now is of a lighter variety than before.  These changes should help over time, as well.

[41]            In my view, the plaintiff sustained a lower moderate soft tissue injury that has resulted in chronic pain and mild anxiety.  She is capable of achieving greater recovery than she has to date in spite of the time that has passed since the accident.

When trying to value your Non-Pecuniary Damages (pain and suffering) in an ICBC Injury Claim it is important to find cases with similar injuries and a similar prognosis to help establish a range of potential damages.  I intend to keep reporting non-pecuniary damages highlights in ICBC Injury Claims and look forward to growing this database.  As always, any feedback from my readers is welcome!

ICBC Injury Claims, Trials and Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 56 Comments on ICBC Injury Claims, Trials and Costs

I’ve written many times about the costs consequences of ICBC Claims and Supreme Court Trials where a formal offer of settlement is made under Rule 37B.  What about when no offer is made, what are the costs consequences then?  In these circumstances Rule 57(9) of the Supreme Court Rules governs which holds that “Subject to subrule (12), costs of and incidental to a proceeding shall follow the event unless the court otherwise orders”
What this basically means is to the victor goes the spoils.  If you bring an ICBC Injury Claim to trial in BC Supreme Court and are successful unless the court otherwise orders you will be entitled to your ‘costs’.  But what happens if you are only partially successful in your ICBC Injury Claim?  Can you still get your full costs or can these be split?  
Reasons for judgement were released today (Heppner v. Zia) dealing with this issue.  In today’s case the Plaintiff brought an injury claim following a 2004 motor vehicle collision in New Westminster, BC.  Prior to trial the Plaintiff was seeking to settle her ICBC Injury Claim for $349,900 and ICBC was offering $20,000.
After a 15 day trial the court found that the Plaintiff was 50% responsible for the collision.  In addition to being found partially at fault, the Court rejected the Plaintiff’s claim that she sustained a disc herniation as a result of the collision and that she was permanently disabled from her employment as a result of the collision.  In the end the Plaintiff was awarded damages of just over $45,000 for her soft tissue injuries.
In the normal course the Plaintiff would be entitled to her costs as she was awarded an amount greater than ICBC’s settlement offer and an amount greater than the Small Claims Court monetary jurisdiction.  ICBC, however, argued that they were largely successful in defending the claim in both proving the Plaintiff was partially at fault and in refuting her claim that her disc herniation was related to the collision  ICBC argued that the costs should be apportioned accordingly.  Mr. Justice Cohen of the BC Supreme Court agreed.
In concluding that the Plaintiff should be deprived of her costs for that portion of the trial which involved the claim of an accident related disc herniation Mr. Justice Cohen summarized and applied the law as follows:

[11]            In Sutherland v. The Attorney General of Canada, 2008 BCCA 27 at para. 31, Finch C.J.B.C., for the Court, said, as follows:

The test for the apportionment of costs under Rule 57(15) can be set out as follows:

(1)        the party seeking apportionment must establish that there are separate and discrete issues upon which the ultimately unsuccessful party succeeded at trial;

(2)        there must be a basis on which the trial judge can identify the time attributable to the trial of these separate issues;

(3)        it must be shown that apportionment would effect a just result….

[16]            Upon a review of the authorities submitted by both sides, particularly the recent decision of Romilly J. in Shearsmith v. Houdek, 2008 BCSC 1314, I am satisfied that the issue of the plaintiff’s disc herniation is a discrete issue upon which the plaintiff did not succeed.

[17]            In the case at bar, the Court noted at para. 290 of the Reasons, that the main thrust of the plaintiff’s claim for damages was that she sustained a low back soft tissue injury that eventually lead to disc herniation surgery that has rendered her permanently disabled, and that this outcome was due directly to the accident.

[18]            At paras. 291-292 of the Reasons, the Court said, as follows:

[291]    The defence position is that given the history and the onset of symptoms of low back pain; the plaintiff’s prior history of work related low back injuries and complaints; that the plaintiff’s first onset of low back pain after the accident was caused by the same movement of bending forward as caused the plaintiff’s work related onset of low back pain; and that the plaintiff was working as hard after the accident as she was before the accident, it is impossible to conclude that the accident caused the plaintiff’s chronic low back pain.

[292]    The essence of the defence based on causation is that the plaintiff did not complain about low back pain until about two months after the accident, and then only intermittently thereafter.  The defendants assert that a significant increase in the plaintiff’s low back symptoms and the onset of new symptoms can actually be dated from the plaintiff’s fall down the stairs in her home in early March 2005.  It was this event, claim the defendants, that caused the plaintiff to undergo disc herniation surgery and is the real reason why she did not return to her occupation as a nurse’s aid.

[19]            At para. 317 of the Reasons, the Court concluded as follows:

[317]    In the result, I find that the evidence does not establish a temporal link between the accident and the onset of the plaintiff’s low back symptoms ultimately leading to the diagnosis of disc herniation and disc herniation surgery.  In my opinion, the plaintiff has failed to prove on a balance of probabilities that the accident caused or contributed to the plaintiff’s disc herniation.  She has failed to prove that her disc herniation would not have occurred but for the negligence of the defendants.

[20]            Thus, in the circumstances of the case, I disagree with the plaintiff’s contention that the plaintiff’s disc herniation was not a discrete issue, but merely part of the overall burden on her to prove the extent of the injuries that she suffered as a result of the accident.

[21]            I also disagree with the plaintiff that it is not possible to attribute the time taken up in dealing with the issue of the plaintiff’s disc herniation, as opposed to the time taken up dealing with the plaintiff’s other injuries. 

[22]            I find that the plaintiff should be denied her costs associated with this discrete issue.

The Court then turned to the issue of liability and the fact that ICBC was successful in proving the Plaintiff 50% at fault for the collision.  Mr. Justice Cohen held that in these circumstances the Plaintiff’s trial costs should be reduced by 50% and summarized and applied the law as follows:

 

[25]            Finally, I turn to the matter of s. 3(1) of the Negligence Act, R.S.B.C. 1996, c. 333 (the “Act”).  The defendants submit that the costs awarded in favour of the plaintiff ought to be reduced by 50% to reflect the court’s finding on liability. 

[26]            Section 3(1) of the Act states:

Unless the court otherwise directs, the liability for costs of the parties to every action is in the same proportion as their respective liability to make good the damage or loss.

[27]            The plaintiff says that an application of s. 3(1) would work an injustice in this case.  Her position is that the issue of liability occupied relatively little time at the trial, perhaps no more than a day or two.

[28]            In Moses v. Kim, 2007 BCSC 1820, the plaintiff sought 100% of his taxable costs, notwithstanding that he was held 65% responsible for the accident.  At para. 13, Gray J., as part of her analysis of whether she should use her discretion to depart from the usual rule, set out the following criteria to be applied by the Court:

(a)        the seriousness of the plaintiff’s injuries;

(b)        the difficulties facing the plaintiff in establishing liability;

(c)        the fact that in settlement negotiations the amount offered was substantially below the ultimate amount;

(d)        whether the plaintiff was forced to go to trial to obtain recovery;

(e)        the costs of getting to trial;

(f)        the difficulty and length of the trial;

(g)        whether the costs recovery available to the plaintiff, if costs are apportioned according to liability, will bear any reasonable relationship to the party’s costs in obtaining the results achieved;

(h)        the positions taken by the parties at trial, in particular whether the positions taken were appropriate and reasonable in the circumstances;

(i)         whether the defendants made any settlement offers;

(j)         the ultimate result of the trial; and

(k)        whether the plaintiff achieved substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Negligence Act.

[29]            In the instant case, the Court found that the plaintiff sustained mild to moderate soft tissue injuries as a result of the accident, and held that the general damage award should be based on the fact that her condition had improved and recovered to the stage that by a year post-accident she felt well enough to return to work on a gradual basis.  Hence, the plaintiff’s general damage award was substantially less than the amount she sought.

[30]            As well, the award received by the plaintiff for general damages was substantially less than that offered by her prior to the trial ($349,000), and somewhat closer to the amount offered by the defendants ($20,000).  Moreover, the factors of whether the plaintiff was forced to go to trial to obtain recovery, the costs of getting to trial, and the difficulty and length of the trial are applicable to both sides. 

[31]            Finally, given the ultimate result of the trial, and the fact that, in my view, the plaintiff did not achieve substantial success that would be effectively defeated if costs were awarded pursuant to s. 3(1) of the Act, I find that there are no features of the action to warrant departure from the usual rule. 

[32]            Accordingly, the plaintiff’s costs shall be reduced by 50% to reflect the division of liability.

$40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Written by admin on . Posted in ICBC Brain Injury Cases, ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases. 61 Comments on $40,000 Pain and Suffering Awarded for TMJ, Hip Injury and STI's

Reasons for judgement were released yesterday by the BC Supreme Court (Pavlovic v. Shields) awarding a Plaintiff just over $134,000 in total damages as a result of injuries sustained in 2 separate motor vehicle collisions.
The first collision was in 2006 and the second in 2007.  Both were rear-end crashes and the Plaintiff was faultless in both collisions.  Often in ICBC Injury Claims involving multiple collisions where fault is not at issue damages are assessed on a global basis and that is what occurred in this case.
Mr. Justice Rice found that the Plaintiff had pre-existing back and shoulder pain before these accidents that that even without these accidents the Plaintiff would have continued to have pain in these areas.  The Court made the following findings with respect to the Plaintiff’s injuries and awarded $40,000 for her non-pecuniary loss (pain and suffering / loss of enjoyment of life):

[59]            In this case, the plaintiff had back and shoulder pain pre-dating both accidents.  This is a “crumbling skull” situation.  It is more probable than not that the plaintiff would have experienced ongoing problems with back pain, for which she had already seen a Dr. Ansel Chu on several occasions in 2003.  The plaintiff claims these injuries were fully resolved, and relies on Dr. Chu’s report of August 14, 2003, in which he states that the plaintiff had had good relief from pain following a series of trigger point injections.  However, Dr. Chu does not state that her injuries had resolved, merely that she was “doing quite well” and that she could make a further appointment with him if the pain flared up again.  That the plaintiff made no further appointments is likely explained by the fact that she went to Europe for an extended period shortly after her last appointment with Dr. Chu. 

[60]            The evidence from Dr. Petrovic’s report is that only two permanent injuries from the accidents are likely: the TMJ and the right hip.  He would defer to the experts on those and has a guarded prognosis for the remainder of her injuries.  Dr. Epstein testified that the TMJ injury is likely to improve with continued treatment.  Dr. Smit was of the opinion that the right hip would require surgery.   

[61]            I accept that the plaintiff had no pre-existing hip or jaw complaints and that these are her principal injuries.  The hip may require surgery and her jaw will require ongoing management and treatment.  The defendants are fully liable for these injuries.  Her other injuries – the neck, shoulder and back pain – are likely to improve over the next year.   The effects of the concussion resolved nine months after the accident.  Taking these factors into account, I consider an award of $50,000 in non-pecuniary damages appropriate in the circumstances, the bulk of which reflects the injuries to the jaw and hip, discounted by 20% to reflect the plaintiff’s pre-existing chronic back pain, for a total of $40,000.

Mr. Justice Rice also did a good job explaining 2 legal principles which often arise in ICBC Injury Claims – the ‘thin-skull’ principle vs. the ‘crumbling skull’ principle.  He summarized these as follows:

[54]            The defendant does not go so far as to deny that the accident caused or contributed to the plaintiff’s injuries.  The concern is as to the extent.  The issue is whether this is a “thin skull” or a “crumbling skull” situation.  Both address the circumstances of a pre-existing condition and its effect upon the accident victim.  The law is that the defendant need not compensate the plaintiff for any debilitating effects of a pre-existing condition if the plaintiff would have experienced them regardless of the accident: Athey v. Leonati, [1996] 3 S.C.R. 458 at para. 35, 140 D.L.R. (4th) 235.  The court requires “a measurable risk” or “a real or substantial possibility and not speculation” that the pre-existing condition would have manifested in the future regardless of the plaintiff’s negligence.  The measurable risk need not be proven on a balance of probabilities, but given weight according to the probability of its occurrence: Athey v. Leonati, at para. 27.

[55]            The injury is deemed “thin skull” when there is a pre-existing condition that is not active or symptomatic at the time of the accident, and that is unlikely to become active but for the accident.  If the injury is proven to be of a thin skull nature, then the defendant is liable for all the plaintiff’s injuries resulting from the accident. 

[56]            A “crumbling skull” injury is also one where there is a pre-existing condition, but one which is active or likely to become active regardless of the accident.  If the injury is proven to be of a crumbling skull nature, then the plaintiff is liable only to the extent that the accident caused an aggravation to the pre-existing condition.

ICBC Injury Claims, Medical Exams and Access to Information

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

When advancing an ICBC Injury Claim ICBC can typically arrange an ‘independent medical exam’ to assess your injuries.   This is usually done either through the power given to ICBC under the Insurance (Vehicle) Regulation or pursuant to Rule 30 of the Supreme Court Rules.
When ICBC sends you to a doctor for an ‘indpendent’ examination the physician usually takes notes and often authors a report summarizing his/her opinion of collision related injuries.  Normally ICBC Injury Claims Lawyers negotiate the terms of these examinations to permit their client to have access to the medical examiners notes.
What if these terms are not discussed prior to the exam, are you entitled to have access to the notes that ICBC’s doctor generates as a result of the visit or can ICBC claim litigation privilege over these notes?
Reasons for judgement were released today (McLeod v. Doorn) dealing with this issue.  In today’s case ICBC arranged to have the Plaintiff examined by a physician.   The Plaintiff did not negotiate what access she would have to the physicians records when she agreed to this assessment.  After the exam the Plaintiff sought access to the doctor’s clinical records and ICBC refused to provide these on the basis that the notes were protected by litigation privilege.
The Plaintiff brought an application in Court to be granted access to these records and in granting the application Master Caldwell summarized and applied the law as follows:

[4] I have considered counsel’s submissions extensively; however, I am consistently drawn back to paras. 12 and 13 of the reasons of Finch J.A. (as he then was) in Stainer v. Plaza, [2001] B.C.J. No. 4:

In my respectful opinion this condition is too broadly expressed.  Some reports prepared by or for a doctor performing an independent medical examination may not be protected by a solicitor’s brief privilege.  Ever since Milburn v. Phillips (1963), 44 W.W.R. 637 (B.C.S.C.) our courts have recognized that statements made by a plaintiff to a doctor conducting an independent medical examination under compulsion of court order may be ordered to be communicated to the plaintiff’s solicitor.  And, insofar as the examining doctor makes observations or findings on physical examination, he becomes to that extent a potential witness as to matters of fact.  That there can be no property in a witness of fact is well settled: Harmony Shipping Co. S.A. v. Davis.[1979] 3 All ER (C.A.).

It therefore appears to me to be within the proper exercise of the discretion afforded under Rule 30 to impose, as a condition of ordering an independent medical examination, delivery up to a plaintiff of the examining doctor’s notes that record any history given to him by the plaintiff on the examination, and any notes that record the doctor’s observations or findings on physical examination.  It would not usually, however, be fair to go further, and to require the defendant or third party to disclose any documents prepared by the doctor which contain his confidential opinions or advice to the lawyer who requested the examination, whether for the purposes of trial preparation, cross-examination at trial, or otherwise.

[5] Defence counsel points out that there was no order made under Rule 30 and, therefore, this reasoning does not apply; however, because the plaintiff agreed to go without an order, she is stuck.  I fail to see how that can be correct.  Rule 1(5) states that the object of the Rules is to “secure the just, speedy and inexpensive determination of every proceeding on its merits”.  Requiring a court order in the circumstances of this case hardly fits with such intention.

[6] I am of the view that the notes that record any history given to Dr. Piper and Mr. Kerr by the plaintiff at the examinations and any notes of those two professionals which record their observations or finding on physical examination, including raw test data, are to be produced to plaintiff’s counsel in the manner outlined in para. 4 of the proposed order.