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ICBC Claims and Recording 'Independent' Medical Exams

Written by admin on . Posted in Civil Procedure, independent medical exams. 54 Comments on ICBC Claims and Recording 'Independent' Medical Exams

Reasons for judgement were released today dealing with several motions before the BC Supreme Court in a motor vehicle accident claim.
The Plaintiff was self represented in this Supreme Court action.  (This case is worth reviewing on this point alone as the judgment illustrates some of the challenges courts sometimes face when dealing with unrepresented parties in Supreme Court actions).
One of the motions before the court was to compel the Plaintiff to attend an independent medical examination with a doctor of ICBC’s choosing.  While the Plaintiff did not object to being examined, she wished for several conditions to be set including the right to record the examination.
In not granting this condition Master Young reviewed several authorities dealing with the issue of recording independent medical exams.  Master Young concluded that in this case there were no cogent reasons to permit audio recording.  She referred to the leading BC Court of Appeal case on this topic of  Wong v. Wong, 2006 BCCA 540 which discussed the the factors BC Courts should consider when hearing such applications, namely:

(a)        the absence of evidence that an audio tape recording would inhibit or impair the examination;

(b)        evidence that the plaintiff had a poor memory or was forgetful;

(c)        the absence of evidence that the examining doctor objected to the use of a tape recorder;

(d)        evidence that the plaintiff had difficulty communicating and understanding, perhaps related to lack of fluency in English or the language of the examining doctor;

(e)        the likelihood that a tape recording might lead to settlement short of trial; and

(f)         the likelihood that an audio tape recording would contribute to the fairness of the trial.

In the same case the Court of Appeal noted the following about recording independent medical exams:

While I am of the view that a master or judge has a discretion under Rule 30 to permit the use by a plaintiff of an audio tape recorder on an independent medical examination, it is in my opinion a discretion that should be exercised rarely and with restraint, and only in circumstances where there is cogent evidence that the use of an audio tape recording will advance the interests of justice.

$55,000 Non-Pecuniary Damages for Musculoligamentous Injuries

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

Reasons for judgment were released today by the BC Supreme Court awarding a 24 year old Plaintiff just over $100,000 in damages as a result of injuries and loss suffered in 2 BC motor vehicle collisions.
Both collisions were rear-end crashes.  The first occurred in February, 2004, the second in July of the same year.  Fault was admitted by ICBC on behalf of the Defendants in both accidents.  This trial dealt with quantum of damages (value of these injury claims).
The Plaintiff had generally good health before the collisions.   After the collisions she suffered from various symptoms.  The extent of her injuries and their relationship to the crashes was at issue at trial.
The court found that the Plaintiff suffered from back pain, neck pain and headaches and that these injuries were related to the collisions.  The court accepted that these are ‘musculoligamentous strains….(and that the Plaintiff) will be prone to ongoing muscular discomfort in the neck and lower back in the years to come…..and that it is unlikely that her symptoms will settle altogether‘.
The court awarded damages as follows:

(1)               Non-pecuniary damages:       $   55,000;

(2)               Past Loss of Income:              $     3,000;

(3)               Loss of earning capacity:        $   25,000;

(4)               Cost of Future Care:               $   15,000;

(5)               Special Damages:                  $     4,500.

More Judicial Consideration of Rule 37B

Written by admin on . Posted in Civil Procedure, ICBC Psychological Injury Cases, ICBC PTSD Cases.

Reasons for judgement were released today by Mr. Justice Butler providing more commentary on the new BC Rule 37B.  (search this site if you wish to read my numerous previous posts on Rule 37B precedents).
In this case the Plaintiff witnessed a severe motor vehicle collision.  He was not involved in the crash nor did he know any of the people involved.   He claimed that he suffered from Post Traumatic Stress Disorder (PTSD) and sued for damages for nervous shock.  The claim succeeded and damages in the amount of $11,100 were awarded.
That in and of itself was a first in BC as far as I am aware as previous successful nervous shock cases involved circumstances where the allegedly injured party knew or had family connections to the victims of the collision.
The Defendants delivered a formal offer of settlement which was greater than the judgement amount.  The issue now was, what, if any, costs consequences should there be under the new Rule 37B.
In awarding the Plaintiff costs up to the point that the offer was made an in awarding the defendant costs from then onwards the court made the following comments:
[16]            One of the goals of Rule 37B, like the former Rule 37, is to promote settlements by providing that there will be consequences in the amount of costs payable when a party fails to accept an offer that ought reasonably to have been accepted.  That goal would be frustrated if Rule 37B(5) did not permit the court the option of awarding costs of all or some of the steps taken in a proceeding after the date of delivery of an offer to settle….

[20]            While the case was novel for the reason noted above, it was not particularly complex.  The foreseeability, proximity and public policy questions have been the subject of other decisions of both this court and the Court of Appeal.  Ultimately, my decision rested upon the evidence of the three psychiatrists regarding causation.  This should not have surprised the parties, as all three psychiatrists concluded that Mr. Arnold suffered Post Traumatic Stress Disorder (“PTSD”) as a result of the nervous shock he experienced at the scene of the motor vehicle accident.  The real issue was whether the psychiatric difficulties he encountered approximately a year after the accident were caused by the motor vehicle accident induced PTSD.

[21]            Mr. Arnold received supportive medical legal opinions from two treating psychiatrists.  However, the report of Dr. Smith concluded that Mr. Arnold’s subsequent disability was not related to the PTSD or the motor vehicle accident.  Once Mr. Arnold was in receipt of that report, he had all of the information he required to properly consider the offer to settle.  Within a reasonable period after receipt of the report and the offer to settle, the offer to settle was one that ought reasonably to have been accepted.  This is the most significant consideration for me in deciding how to exercise my discretion in this case.

[22]            A reasonable period of time to consider an offer to settle is seven days:  Bailey v. Jang, 2008 BCSC 1372.  I do not know when Dr. Smith’s medical legal report was delivered to Mr. Arnold.  If it was delivered prior to the delivery of the offer to settle, then the offer to settle is one that ought reasonably to have been accepted seven days after the date it was delivered.  However, if Dr. Smith’s report was not delivered until some later date, I conclude that the offer to settle was one that ought reasonably to have been accepted seven days after delivery of the report.

[23]            Mr. Arnold has asked that I take into account the relative financial circumstances of the parties when exercising my discretion.  I find that I am unable to do so.  First, Mr. Arnold has provided no evidence regarding his financial circumstances other than the assertion that the likely result of a costs award in favour of the defendant will leave him with no recovery from the action.  Rule 37B gives this Court greater discretion than it had under the old Rule 37.  It specifically allows the Court to consider the relative financial circumstances of the parties.  However, there will always be a substantial difference between the relative financial circumstances of the usual personal injury plaintiff and the defendant’s motor vehicle insurer.  That difference, in and of itself, is not enough for the Court to exercise its discretion to deprive the defendant of costs.  If that was the intent of the new rule, it would have been more clearly articulated.

[24]            In the present case, Mr. Arnold has put forward no evidence of special circumstances regarding his finances.  He has put forward no evidence of other factors that should be taken into consideration in the exercise of my discretion.  Accordingly, I will leave it to other courts to consider when it is appropriate to deprive a party of costs when that party has delivered an offer that ought reasonably to have been accepted.

Rule 37B precedents are being handed down at a very fast pace by our BC Courts and I will continue to discuss these judgments as they come to my attention, particularly in ICBC or personal injury claims.

ICBC Claims, Surveillance Video and Disclosure

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 38 Comments on ICBC Claims, Surveillance Video and Disclosure

Reasons for judgment were released today by the BC Court of Appeal dealing with the timing of disclosure of non-privileged video surveillance of a Plaintiff involved in a tort claim.
In this case the Plaintiff sued for damages as a result of 2 motor vehicle collisions.  The Defendants insurer retained a private investigator to conduct surveillance of the Plaintiff.
In the course of the lawsuit the Plaintiff triggered Rule 26 (which, when complied with, requires the opposing party to provide a list of documents relevant to the action).  The Defendants listed the video surveillance as non-privileged but refused to produce the tape of the Plaintiff until after her examination for discovery claiming that Rule 26(1.2) permits them to delay production of this document because the credibility of the Plaintiff was a central issue of this claim and if the supposedly damaging tape was disclosed prior to discovery that would somehow compromise the defendants ability to examine her for discovery. 
The Plaintiff applied to court for production of the tape and succeeded.  The Defendants took the case up to the Court of Appeal.
The Court of Appeal dismissed the appeal and gave the following insightful reasons discussing the intent of Rule 26(2.1)

[22]            Generally speaking, the burden of proof is on the party making an application.  That burden is to the standard of a balance of probabilities.  I see no principled reason why an application under R. 26(1.2) should be treated any differently.   In this case, the appellants are the applicants seeking a postponement of production of the Investigative Report.  In my view, they have the burden of establishing the grounds for such an order on a balance of probabilities.

[23]            Both sides contend that Blank, the seminal decision on the scope of the exemption for litigation privilege, supports their respective positions that the trend in disclosure of documents favours broadening (the appellants) or restricting (the respondent) of the exemption.  With respect, I do not find these submissions offer assistance in this appeal.  The circumstances of this case do not involve a request for disclosure of a privileged document but, rather, a request to postpone production of a relevant, non-privileged document.  In my view, the issue raised in this appeal requires an inquiry into what factors might negate the mandatory production of relevant, non-privileged documents in an action…..

[37]            I am not persuaded these authorities support the appellants’ position that the common law permits the postponement of non-privileged documents in order to permit a party to challenge the credibility of the opposing party.  On the other hand, neither am I persuaded that the policy considerations relied upon by the chambers judge, namely that prior disclosure may save the cost of discoveries as well as court time, preclude trial by ambush, or advance settlement, are relevant considerations.  In my view, the scope of R. 26(1.2) must be decided by reference to the legislative intent of its drafters and a principled application of the competing rights provided by the Rules of Court to parties in an action.   

[38]            The express wording of R. 26(1.2) allows for exclusion from compliance with R. 26(1), not the postponement of its compliance.  To read in language importing a temporal factor is not, in my view, in keeping with the approach to statutory interpretation adopted in Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] S.C.R. 559 at 26, where the Court endorsed the modern approach to statutory interpretation: “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament”.  In determining the scope of the exemption provision in R. 26(1.2), I am of the view the Court must consider only those circumstances in which valid policy concerns might support the decision to exclude (not postpone) production of a relevant, non-privileged document.  …

[45]            There has been much debate over the broad scope of the Peruvian Guano rule, which stated in Murao at para. 12 requires disclosure of “every document … which not only would be evidence upon any issue, but also which, it is reasonable to suppose, contains information which may – not which must – either directly or indirectly enable the party requiring the affidavit [making the demand] either to advance his own case or to damage the case of his adversary, if it is a document which may fairly lead him to a chain of inquiry which may have either of these consequences”.  In my view, it is the extensive scope of this common law disclosure rule that created the need for reasonable limitations.  Stated in another way, it is the “slavish” application of R. 26(1) which informs the scope of R. 26 (1.2). 

[46]            The appellants seek to distinguish these decisions under R. 26(1.2) on the basis that they do not involve a key issue of credibility. They submit that, in this case, an order postponing the production of the surveillance videotapes would give them the opportunity to test the willingness of the respondent to lie about her claim.  They argue that, in the absence of such an order, the respondent might tailor her evidence to fit the scenario depicted in the videotape. 

[47]            With respect, I do not accept this argument as representing a valid purpose for an application of R. 26(1.2).  In this case, there has been no factual determination regarding the respondent’s truthfulness, or lack thereof.  This is the appellants’ theory of liability, and it is for them to establish in the course of the trial.  Nor am I persuaded that the Rules of Court were intended to be used in a manner that would displace a right of a party granted under them, in favour of creating an opportunity for an adverse party to advance their theory of a fact in issue.

[48]            The court in Bronson v. Hewitt, 2007 BCSC 1477,  52 C.P.C.(6th) 116 reached a similar conclusion in dismissing an application for the exclusion of the defendants from one another’s examination for discovery over concerns they might tailor their evidence to fit the evidence of the other.  Credibility was a key issue in that case.  Citing Sissons v. Olson (1951), 1 W.W.R. (N.S.) 507 (B.C.C.A.), Goepel J. stated at para. 17 that “exclusion was only appropriate if necessary to ensure the fair and proper judicial conduct of the action.”

[49]            Another similar conclusion was reached in McGarva v. British Columbia, 2003 BCSC 909.  That case involved a damages claim for breach of fiduciary duty against the Crown by a plaintiff who had been abused while in foster care.  The plaintiff sought disclosure of similar fact evidence from the Crown.  The Crown, in turn, applied for a postponement of disclosure of that evidence in order to avoid the potential of the plaintiff tailoring her evidence to fit the similar fact evidence.  Credibility was a key issue in the action.  Madam Justice Gray declined to impose such a term on the disclosure of the relevant documents, stating that there was no basis for her to restrict the plaintiff’s receipt of this information.  In her view, the Crown’s position was not prejudiced because it would remain open to the Crown to argue, at trial, that the plaintiff had tailored her evidence to conform to any similar fact evidence disclosed to her before her examination for discovery (para. 17).

[50]            The final submission by the appellants is that, in our adversarial system, the right to cross-examination is sacrosanct and should not be trumped by disclosure.  However, this argument mischaracterizes the issue.  Rule 26(1.2) does not limit the appellants’ right to cross-examine the respondent.  The respondent’s credibility may be challenged in any number of ways, including the use of a prior inconsistent statement on cross-examination, the lack of adequate explanation for any apparent discrepancies between the respondent’s actions in the surveillance videotape and her reported disability, and by other evidence tendered at trial that might dispel the legitimacy of her claims.

[51]             In summary, I am not persuaded that R. 26(1.2) was intended for the purpose of restricting the right of a party, at an examination for discovery, to prior knowledge of all relevant and non-privileged documentation in the examining party’s possession and control, in order to permit the latter to advance its theory of the case where credibility of the former is a key issue in the litigation.  

[52]            I would dismiss the appeal and award costs of the appeal to the respondent in any event of the cause.

I should point out that this case does not address the more typical fight about the release of surveillance video in a tort claim that is supposedly privileged.  In this case it was agreed that the tape was not privileged.  This case is useful, however, because the Court of Appeal references many precedents addressing the issue of litigation privilege and the disclosure of video surveillance.

More from BCSC on Rule 37-B

Written by admin on . Posted in Civil Procedure. 54 Comments on More from BCSC on Rule 37-B

Reasons for judgment were released today further interpreting the relatively new BC Rule 37(B) (the rule dealing with formal settlement offers and costs consequences of these in BC Supreme Court Actions).
The facts of this case are a little difficult to extract from the judgement but it appears that the Plaintiff sued for damages as a result of 2 motor vehicle collisions and separate Formal settlement offers were made by the Defendants in each action.  Both actions went to trial by jury and damages were awarded.
It appears that the global Jury award exceeded the combined settlement offers but when broken down between the 2 accidents it appears that the settlement offer for the second collision exceeded the damages the Jury awarded for that collision.
The Defendants asked the court to award them costs for beating the Second Accident Rule 37 offer.  (I should point out that the settlement offers where made when Rule 37 was still in place but verdict was given after it was repealed by Rule 37B).
The court noted that:

[11]            Rule changes have overtaken this case.  Rule 37B retroactively reinstates judicial discretion in the matter of settlement offers and cost awards.

[12]            As set out in Bailey v. Jang, 2008 BCSC 1372, Rule 37B came into force on July 1, 2008.  The Rule states that it applies to offers to settle made both before and after July 1, 2008, where no order as to costs has been made.  As conceded by the defendants on this application, Rule 37B returns judicial discretion as a major factor in determining an appropriate award of costs.  Thus, the new rule makes far less applicable most of the Court of Appeal decisions relied upon by the defence.  That is, those which stated Rule 37 is a complete code in relation to which no judicial discretion is applicable.

The court then refused to exercise its discretion to award the second defendant costs or double costs for exceeding their settlement offer.  The court provided the following reasons:

[14]            The analysis requires applying the facts to Rule 37B(6)(a):

Whether the offer to settle was one that ought reasonably to have been accepted, either on the date that the offer to settle was delivered or on any later date

[15]            Here, while I do not find, as urged to do by the plaintiff, that the offer is ambiguous or at least significantly ambiguous, it is clear that to accept the second offer in this case would not have simplified the trial at all.  It is reasonable to assume that, particularly with a jury to have settled the second action would tend to leave the jury with more complicated instructions.

The relationship between the terms of settlement offered and the final judgment of the Court

[16]            The two offers combined were significantly less than half the award of the jury.  Thus, this factor favours not awarding costs to the defendants.

The relative financial circumstances of the parties

[17]            This was a matter of a bus company versus the modest financial circumstances of the plaintiff.  If anything, it favours the plaintiff however, I give little weight to this.

[18]            In all these circumstances – the over-riding principle here is whether, if the offer had been accepted would there have been a significant or any saving in litigation cost to either party or the Court.  Here, it would be difficult to see any saving.  It was obvious during this trial that the defence intended to call the bus driver and perhaps other witnesses to the second accident to challenge the plaintiff’s credibility generally.  There was little or no evidence by the plaintiff that painted the second accident as other than minimal physically.  The psychological impact was far greater because the second accident occurred just hours following a much more traumatic accident.

[19]            Thus, there would have been no savings in time at the trial.  In these circumstances the defendants are not entitled to any costs of these two actions and the plaintiff will have her costs throughout.

[20]            There is divided success on this application.  However, the plaintiff was successful on the costs issue which took up almost the whole of the submissions.  In these circumstances she should have her costs at the lowest scale on this application.

I will continue to post the BC Supreme Court’s interpretation and application of Rule 37B.  The factors the courts consider in exercising discretion under this rule should be of particular interest to anyone taking an ICBC injury claim to trial in BC Supreme Court where a formal settlement offer has been delivered.

More From BC Court of Appeal on Deductibility of ICBC No-Fault Benefits in Tort

Written by admin on . Posted in Civil Procedure, ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were released today addressing the deductibility of Part 7 Benefits from a tort award claim for damages:
I have previously discussed the deductibility of Part 7 benefits from a BC tort award here, here, and here and you can read these previous posts / articles for background information.
In the case at bar the Plaintiff was a paraplegic.  He was confined to a wheelchair since being 29 years of age.  When he was 43 he suffered injuries in a car accident.  He sued for those injuries and was awarded damages of $210,000.  The Defendant at the trial level argued that $137,223.90 of that award should have been deducted because payment for the needs that portion of the tort award was addressing was available directly from ICBC pursuant to ICBC’s no-fault Part 7 benefits.
The trial judge allowed only a nominal deduction of $1,000.
The defendant appealed arguing that the trial judge was in error for failing to allow a meaningful deduction for future Part 7 benefits.
The Court of Appeal dismissed this appeal.  In doing so the Court referenced a well known previously decided case from the Court of Appeal addressing the issue of deductibility of ICBC Part 7 Benefits in a tort trial and restated that case as good law.  Particularly the Court noted that:
Although I do not subscribe to all of the learned trial judge’s reasoning on the issue, I have not been persuaded that he reached the wrong conclusion.  The defendant bears the onus of proving that the plaintiff is, or will be, entitled to the benefits which it claims to have deducted from the award for the cost of future care.  Strict compliance with the requirements of the statute is called for.  Uncertainty as to whether Part VII benefits will be paid or whether they would “match” elements of the tort award must be resolved in the plaintiff’s favour.
While the Plaintiff was successful in this action in avoiding a potentially financially devastating ‘deduction’ this case yet again illustrates the importance of properly applying for your No-Fault Benefits from ICBC if you are injured in a BC car accident.  Failure to do so could result in a significant deduction of damages in a tort claim.
 

$20,000 Pain and Suffering for Substantially Recovered Mild/Moderate Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today awarding a Plaintiff damages as a result of injuries sustained in a 2005 rear end crash which occurred in Vancouver, BC.
The Plaintiff was received various soft tissue injuries which largely recovered.  In awarding $20,000 for the Plaintiff’s pain and suffering the court made the following key findings of fact:

[23]            The plaintiff, who is now 32 years old, suffered a mild to moderate soft tissue injury in the motor vehicle accident.  He was doing well within three months and was substantially recovered after six.  He has some residual symptoms but they do not restrict the nature of his activities.  However, the degree to which he can participate in them is different now.

[24]            The more importance physical activity has in one’s life, the more one feels the loss of that capability.  (the Plaintiff’s) life largely revolved around sports that required peak physical fitness, and the training required to maintain that level of fitness.  Those aspects of his life were seriously disrupted for three to four months, with gradual improvement over the next two or three.  His relationships with his friends suffered accordingly over that period.  It was clear from his evidence and the evidence of Ms. Fok, his training pal, Mr. Candano-Dalde, and (the Plaintiff’s) mother, that (the Plaintiff) felt with some justification that there was nothing he could not do athletically prior to the accident.  While he has recovered and is now very active again, it appears that he has lost the edge he once had.

[25]            The award for non-pecuniary damages should adequately compensate (the Plaintiff) for all of these factors, past and future.  I set those damages at $20,000.

This case is one of the shorter trial judgements I’ve read from the BC Supreme Court dealing with quantum of damages in quite some time.  This case is worth reading for anyone advancing an ICBC tort claim dealing with mild/moderate soft tissue injuries to see the types of factors considered when awarding money for pain and suffering.

The Implied Undertaking of Confidentiality and ICBC Claims

Written by admin on . Posted in Civil Procedure, ICBC Privacy Issues, Uncategorized. 56 Comments on The Implied Undertaking of Confidentiality and ICBC Claims

Interesting reasons for judgement were released today dealing with the issue of whether a plaintiff in an ICBC tort claim has to produce materials from previous legal proceedings.
In this case the Plaintiff alleged injury as a result of a 2005 BC motor vehicle accident.  The Plaintiff was involved in previous legal proceedings.  The defence lawyer asked the court for production of 3 documents which were contested, specifically

(a)        a copy of the medical report of Dr. Bloch requested by Ms. (the Plaintiff;s) counsel in a pervious proceeding unrelated to this motor vehicle accident (the “Great West proceeding”);

(b)        a copy of submissions prepared by the plaintiff, dated July 11, 2005 and September 23, 2005, regarding a claim which she brought against Mr. Murray in the Surrey Registry of the Provincial Court of British Columbia;

(c)        a copy of the transcript of the plaintiff’s examination for discovery in the Great West proceeding.

The court first dealt with the issue of whether the current defendant was entitled to the plaintiff’s examination for discovery transcript from a previous legal claim.  The court reproduced paragraphs 51 and 53 of the leading Supreme Court of Canada Decision dealing with the ‘implied undertaking’ of confidentiality of examination for discovery transcripts, specifically:

 

51.       As mentioned earlier, the lawsuit against the appellant and others was settled in 2006. As a result the appellant was not required to give evidence at a civil trial; nor were her examination for discovery transcripts ever read into evidence. The transcripts remain in the hands of the parties and their lawyer. Nevertheless, the implied undertaking continues. The fact that the settlement has rendered the discovery moot does not mean the appellant’s privacy interest is also moot. The undertaking continues to bind. When an adverse party incorporates the answers or documents obtained on discovery as part of the court record at trial the undertaking is spent, but not otherwise, except by consent or court order. See Lac d’Amiante, at paras. 70 and 76; Shaw Estate v. Oldroyd, at paras. 20-22. It follows that decisions to the contrary, such as the decision of the House of Lords in Home Office v. Harman (where a narrow majority held that the implied undertaking not to disclose documents obtained on discovery continued even after the documents in question had been read aloud in open court), should not be followed in this country. The effect of the Harman decision has been reversed by a rule change in its country of origin.

53.       I would not preclude an application to vary an undertaking by a non-party on the basis of standing, although I agree with Livent Inc. v. Drabinsky that success on such an application would be unusual. What has already been said provides some illustrations of potential third party applicants. In this case the Attorney General of British Columbia, supported by the Vancouver Police, demonstrated a sufficient interest in the appellant’s transcripts to be given standing to apply. Their objective was to obtain evidence that would help explain the events under investigation, and possibly to incriminate the appellant. I think it would be quite wrong for the police to be able to take advantage of statutorily compelled testimony in civil litigation to undermine the appellant’s right to silence and the protection against self-incrimination afforded her by the criminal law. Accordingly, in my view, the present application was rightly dismissed by the chambers judge. On the other hand, a non-party engaged in other litigation with an examinee, who learns of potentially contradicting testimony by the examinee in a discovery to which that other person is not a party, would have standing to seek to obtain a modification of the implied undertaking and for the reasons given above may well succeed. Of course if the undertaking is respected by the parties to it, then non-parties will be unlikely to possess enough information to make an application for a variance in the first place that is other than a fishing expedition. But the possibility of third party applications exists, and where duly made the competing interests will have to be weighed, keeping in mind that an undertaking too readily set aside sends the [page187] message that such undertakings are unsafe to be relied upon, and will therefore not achieve their broader purpose.

The court in this case refused the defendants motion to produce the plaintiff’s previous discovery transcript and the plaintiff’s previously obtained medico-legal report holding that 

On balance, the plaintiff’s privacy interest outweighs the defendants “fishing expedition” as referred to by Binnie J.A.  I am also of the view that the same must be said of the medical report of Dr. Bloch.  That report was a document created for the previous proceeding.  There is no evidence before me to indicate that it was incorporated into the record of that proceeding, in fact I am advised that the action settled before trial.  In the absence of evidence to the contrary, I would expect that such report would have been created and received subjected to a claim of privilege; there is no evidence before me as to the waiver of such privilege.  The defendants’ application for production of the discovery transcript and the medical/psychiatric report is dismissed.

The court however, did order that the transcript of the plaintiff’s previous submissions in a cmall claims court action be produced holding that:

The defendants’ application for a copy of the plaintiff’s submissions in the provincial court proceeding is, however, a different matter.  That action went to trial; the plaintiff apparently made various oral submissions and representations to the court and, I assume, gave evidence.  In addition she is said to have provided written submissions dated July 11, 2005 and September 23, 2005.  In my view, any undertaking regarding those submissions was spent by their use in that proceeding.  

 

Injuries to Passengers of Drunk Drivers in ICBC Claims

Written by admin on . Posted in ICBC Hand Injury Cases.

Reasons for judgement were released today by the BC Supreme Court awarding a Plaintiff damages as a result of a serious hand injury sustained in a 2006 single vehicle accident.
The Plaintiff was a passenger.  The Defendant driver lost control of the vehicle and it flipped over onto its roof.  The Plaintiff was injured in this collision.  ICBC admitted fault on behalf of the driver, the main issue at trial was whether the Plaintiff was partially at fault for her own injuries for getting into a vehicle when she knew or ought to have known that the driver was impaired.
In finding that the Plaintiff was partly to blame for her own injuries the court said as follows:

[17]            In this case, the evidence establishes that the plaintiff must indeed assume some of the responsibility for her injuries.  The plaintiff knew the defendant was drunk before she got into the truck.  Although she was so drunk she was staggering and she does not recall the drive to the parking lot, she does recall the defendant’s behaviour and testified that she knew he was drunk when they left the bar.  She needed a ride home and either asked him for one or voluntarily accepted one from him. 

[18]            However, fault must be apportioned on the basis of the nature and extent of the departure from the respective standards of care: Cempel v. Harrison Hot Springs Hotel Ltd. (1997), 43 B.C.L.R. (3d) 219, 100 B.C.A.C. 212 at para. 24.  On that basis, much more of the fault belongs to the defendant.  He was clearly negligent.  Not only was he impaired, but he chose to spin doughnuts, causing the truck to flip over.  He had apparently driven without incident to the parking lot, and it was his decision to drive, while impaired, in such a dangerous fashion in the lot itself that led to the accident.  While his behaviour was fuelled by alcohol, and the plaintiff should have foreseen that a drunk driver could put her in a position of danger, she was exposed to a greater degree of danger by his reckless antics.  His departure from the applicable standard of care was much greater than the plaintiff’s.  I find the appropriate percentage of contributory negligence in all these circumstances to be 25%.

The Plaintiff sustained a serious hand injury.  In valuing her pain and suffering at $50,000 the court found as follows:

[20]            The plaintiff, who is right-handed, suffered serious injuries to her left hand.  All the skin was removed from the back of her hand, and the tendons were exposed.  Her middle finger was fractured. 

[21]            She has had seven surgeries, during which the tendons have been repaired, the middle joint of the third finger has been fused, and a graft of skin from the inside of her thigh has been applied to the back of her hand.  This skin graft was quite thick and has been reduced in stages.

[22]            The plaintiff does not have pain or numbness in her hand, but has stiffness in the metacarpal phalangeal joints – that is, the joints that connect the finger to the hand itself – on her index, middle and ring fingers, with pronounced stiffness in the middle joint of her index finger.  The fusing of the middle joint of her third finger means it will not bend.  She has signs of early osteoarthritis in the middle and ring fingers.  Her micro-surgeon/hand specialist, Dr. Hill, is of the opinion that she has the potential to develop arthritis in all the joints of her left hand.  The third party’s specialist, Dr. Gropper, does not share that latter view, but apart from that his opinions did not differ from Dr. Hill’s.  Arthritis could raise the possibility of joint replacement in the future, but the doctors did little more than mention this without elaboration. …..

 

[30]            In summary, as a result of the accident, the plaintiff was required to have seven surgeries on her left hand.  She is left with a non-dominant hand that is obviously different in appearance and function, regardless of the remaining surgery that will give some further amelioration in those respects.  She is left with stiffness in three fingers, one of them fused, but does not suffer pain or numbness.  She keeps her hand covered to avoid embarrassment. She has scarring, reduced grip strength, and reduced tolerance for repetitive activities involving her left hand.

[31]            Based on the evidence before the court, the effect on her daily life and activities is not extensive.  She finds some household chores difficult, and her left hand becomes tired when driving.  She does face the prospect of advancing arthritis, particularly in the two presently affected joints.

[32]            Considering all of the evidence, I am of the view that the amount proposed by the third party is reasonable.  I award $50,000 for non-pecuniary damages. 

This case serves as a stark reminder that if you know or ought to know that the driver of your vehicle is impaired by alcohol you can be found partially at fault for your own injuries if the driver is involved in a crash.  Such a finding of contributory negligence will affect the value of your ICBC claim.  

$35,000 Pain and Suffering for Moderately Severe Whiplash

Written by admin on . Posted in Civil Procedure, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Reasons for judgement were released today by the BC Supreme Court awarding close to $45,000 in total damages as a result of a 2006 Surrey, BC car accident.
This case involved a rear-end crash and liability was admitted.  The trial focused solely on damages.
The Court made the following findings of fact:

[50]            I am satisfied that (the Plaintiff) suffered a moderately severe whiplash injury as a result of the accident in January 2006 that involved her upper, mid and lower back, neck, and shoulders. In addition, I am satisfied (the Plaintiff) suffered an injury to the web spaces between her thumbs and forefingers on both hands when they struck the steering wheel upon impact. As a consequence of these injuries, I accept that (the Plaintiff) suffered muscle stress headaches in the back of her neck that were distinct from her migraine headaches.  Further, I accept that she had difficulty sleeping because of the pain from her injuries and, at least initially, because of the emotional distress caused by the serious nature of the accident.

[51]            There is also cogent evidence that as a result of these injuries (the Plaintiff) was incapable to performing her crossing guard job and her noon hour supervision work from January 9 to March 10, 2006. Further, it is apparent that the pain (the Plaintiff) suffered as a result of these injuries was significant enough to warrant frequent and regular appointments with Dr. Rondeau up until October 2006 and twice weekly physiotherapy treatments from February 2006 to December 2006.

[52]            After December 2006, however, there is no evidence that (the Plaintiff) sought medical treatment for her injuries. While (the Plaintiff) continued to do the exercises and stretches she was taught by her physiotherapist once or twice per week, she did not return to her doctor or seek other types of therapy until July 2008 when she began a course of massage therapy as recommended by Dr. Hershler. Moreover, (the Plaintiff) went to work and carried out her regular duties during this period with only limited discomfort as corroborated by the evidence of Ms. Sawicki and Ms. Hildebrandt. With her return to regular work duties, (the Plaintiff) was also capable of engaging in her only physical recreational activity: going for walks. As walking was a regular part of her job each day, it is likely that she was capable of returning to her pre-accident recreational walking soon after she returned to work.

Damages were assessed as follows:

1.         Non-pecuniary damages $35,000.

2.         Past loss of wages $1,474.15.

3.         Future loss of earning capacity $3,158.

4.         Special damages $665.03.

5.         Cost of future care $1,353.

6.         Loss of housekeeping services $4,704.

One procedurally interesting part of this decision was the issue of the admissibility of a treating doctor’s CL-19 report.   When people apply to ICBC for no fault benefits they have the right to obtain a report in the prescribed form from treating physicians.  The prescribed form is known as a CL-19 which is a short form fill in the blanks type of a document in which treating doctors are asked to answer certain questions relating injuries and disability.  In this case the Plaintiff  wished for the doctor’s opinion contained in the CL-19 to be admitted into evidence.  The defence opposed arguing that the report does not comply with Rule 40A (the supreme court rule dealing with the admissibility of expert opinion evidence)  The court ruled the report inadmissible finding as follows:

[6]                Clearly both parties’ positions have merit. There was nothing further  (the Plaintiff’s) counsel could have done to secure a report from Dr. Rondeau that complied with the Rules of Court. On the other hand, Mr. Sharma’s counsel had no notice of the nature of Dr. Rondeau’s opinion and an adjournment of the trial at this late stage would not have been appropriate.

[7]                I heard Dr. Rondeau’s evidence in a voir dire subject to a ruling on its admissibility. In my view, apart from his observations of (the Plaintiff’s) symptoms and his chronology of events, his testimony had very little probative value. First, Dr. Rondeau did not diagnose (the Plaintiff) as having myofacial pain syndrome. This was simply a question in his mind when he completed the CL-19 form about six weeks after the accident which was far too soon to make such a diagnosis. Second, although he observed some signs that she suffered from post traumatic stress disorder, there was also no definite diagnosis of PTSD at the time the CL-19 was completed. It is also my view that the diagnosis of such psychological conditions may well be outside the expertise of a family physician. Accordingly, the weight that could be applied to the opinion evidence of Dr. Rondeau is very limited.

[8]                In these circumstances, it is appropriate to exercise my discretion in favour of the defendant and exclude Dr. Rondeau’s opinion evidence. The CL-19 does not meet the minimum requirements for a medical/legal opinion and it would prejudice Mr. Sharma if I were to admit the evidence despite its deficiencies. On the other hand, even if I were to admit Dr. Rondeau’s opinion evidence, it adds little to the plaintiff’s case.