BC INJURY LAW – Page 34 – The MacIsaac Group of Law Firms

Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

Written by admin on September 14, 2018. Posted in BC Supreme Court Costs Cases, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.
In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages. Prior to trial the Defendants offered to settle for $50,000. A further offer of $65,000 was tabled. Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought. The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.
The Jury ultimately dismissed the claim. In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23] The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24] The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25] From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center. There were inconsistencies between what it showed and what she relayed to her experts. It was also obvious these inconsistencies would have a significant impact on her case. I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence. Often video surveillance is not compelling; here it was.

[26] Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

· The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident. Her GP testified that he would have made a note of these complaints if they were made to him.

· The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

· In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary. She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder). However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident. Further the surveillance video showed the plaintiff working at an elections voting station.

· At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport. She also said she did not own any other properties other than her primary residence. However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for. Her reported rental income was more than she had ever earned from Swissport before the accident.

…

[37] I said I would return to the timing of the second offer There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018. The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs. As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner. This would have given the plaintiff more time to consider her position, without prejudicing the defendants. Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.

Occupier's Liability Claim Dismissed Where Plaintiff Did Not Know Why He Fell Down Stairs

Written by admin on September 4, 2018. Posted in Occupier's liability claims.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, dismissing an occupier’s liability lawsuit involving a plaintiff who was injured after falling down stairs.
In the recent case (Goddard v. Bayside Property Services Ltd.) the plaintiff “fell on a wooden exterior staircase outside a fire exit” at the rear of a property owned by the Defendant. The Plaintiff did not know why he fell and did not produce any evidence documenting the stairs being a hazard at the time of the fall. In dismissing the claim via a summary trial application Mr. Justice Ball provided the following reasons:

[17] In this case, the plaintiff advanced a theory about what caused his fall, but the Court cannot speculate in respect to a theory; the cause of the fall has not been established on the evidence called by the plaintiff.

[18] The standard of care under the Act and at common law for negligence is the same: it is to protect others from an objectively unreasonable risk of harm. Whether a risk is reasonable or unreasonable is a question of fact and must be determined based on the circumstances of the case: Agar v. Weber, 2014 BCCA 297 at para. 30.

[19] The existence of stairs by itself is not an unreasonable risk of harm, but a risk that persons in our society face on a daily basis. The existence of stairs is not therefore something from which the defendants needed to protect the plaintiff: Trinetti v. Hunter, 2005 BCCA 549 at para. 11; Delgado v. Wong, 2004 BCSC 1199 at para. 25.

[20] The fact of the plaintiff’s fall does not establish that the occupier failed to take reasonable care to ensure the plaintiff was reasonably safe. The plaintiff’s uncontroverted evidence, which was accepted by the defendants, is that he does not know what caused him to fall. If that is the case, he cannot establish the defendants caused the fall and he fails then to establish either negligence or breach of a duty under the Act.

[21] Further, given the detailed description of the inspection and maintenance of the staircase involved by the staff and owners of the strata, the defendants have met the requisite standard of care under both the Act and common law negligence.

[22] While the Court heard argument concerning allegations the plaintiff was negligent and submissions relating to quantum of damages, I do not regard those matters as necessary for the purpose of giving judgment.

[23] In the circumstances of this case, the plaintiff has clearly not met the onus which he bears, and as a result the action falls to be dismissed.

$75,000 Non-Pecuniary Assessment for Soft Tissue Injuries Resulting in Chronic Pain

Written by admin on September 3, 2018. Posted in ICBC Chronic Pain Cases, ICBC Soft Tissue Injury Cases.

Reasons for Judgement were published this week by the BC Supreme Court, New Westminster Registry, assessing damages for chronic soft tissue injuries.
In the recent case (Kagrimanyan v. Weir) the Plaintiff was involved in a rear-end collision caused by the Defendants. Liability was admitted. The crash caused various soft tissue injuries which led to chronic pain. Full resolution of the Plaintiff’s symptoms was not expected. In assessing non-pecuniary damages at $75,000 Mr. Justice Riley provided the following reasons:

[54] I must consider the nature of Ms. Kagrimanyan’s injuries, and the impact of those injuries on Ms. Kagrimanyan’s quality of life. In terms of the immediate or short term effects of the accident, Ms. Kagrimanyan suffered a neck sprain and soft tissue injuries causing intermittent headaches, neck and upper back pain, and lower back pain extending into her leg. The headaches, neck and upper back pain have largely resolved over time. However, Ms. Kagrimanyan continues to suffer from lower back pain which has become chronic. There is a consensus amongst the medical experts who testified at trial that Ms. Kagrimanyan has plateaued in her recovery, and that she is likely to have some degree of continuing pain, made worse by fatigue or prolonged physical effort, including standing or even sitting in one position for an extended period of time.

[55] In assessing the extent of Ms. Kagrimanyan’s loss, I must take into account that at the time of the accident she was 35 years old, and she is now 40. According to the evidence, she will continue to suffer from some degree of pain, at least on an intermittent basis, for the balance of her life. Ms. Kagrimanyan may be able to better manage or cope with her limitations through improved physical conditioning, but I find based on all of the expert medical testimony that Ms. Kagrimanyan is not likely to achieve full recovery. This is a significant factor when determining a damage award that will fairly and reasonably compensate Ms. Kagrimanyan for the injuries she has suffered and the resulting impact on her life.

[56] I also accept that Ms. Kagrimanyan has become deconditioned over time, and that with improved physical fitness she may be better able to manage her discomfort and limitations. On this point, I accept the testimony of Dr. Gray that while enhanced conditioning may improve Ms. Kagrimanyan’s ability to cope with pain, it is unlikely to eliminate the pain itself.

[57] In terms of the overall effect of the accident on Ms. Kagrimanyan’s quality of life, I find that the injuries and resulting chronic pain have impacted and will continue to impact her recreational, social, and domestic activities. She is unable to engage in some of the recreational pursuits she used to enjoy. She is still able to socialize and do housework, but finds these things more difficult than they used to be. She has also experienced and will continue to experience pain and fatigue at work. As Dr. Gray put it, Ms. Kagrimanyan’s injuries have left her with a mild form of disability. While able to remain “durably employed”, Ms. Kagrimanyan experiences increasing discomfort over the course of the work day, and as the work week progresses.

[58] I conclude that Ms. Kagrimanyan should be awarded non-pecuniary damages of $75,000. This quantum of damages takes into account all of the non-pecuniary impacts of the accident, including added difficulty in performing household tasks. Although Ms. Kagrimanyan has made a discrete claim for housekeeping as a cost of future care, the particular nature of Ms. Kagrimanyan’s injuries and their impact on her ability to do housework is, in my view, properly addressed under the rubric of non-pecuniary damages. The only exception is with respect to heavy duty or seasonal housework, a discrete category of housework that can be dealt with by way of a pecuniary damage award as explained below.

PTSD Claim Succeeds For Mistaken Plaintiff Belief That Defendant Killed in Crash

Written by admin on August 27, 2018. Posted in ICBC Psychological Injury Cases.

The law in British Columbia has developed to recognize that people witnessing a crash can be compensated in certain circumstances if the event causes psychological injury to them. While PTSD is a common diagnosis the law developed using the term “nervous shock” and the following principle as been applied in BC
[17] In order to show that the damage suffered is not too remote to be viewed as legally caused by Mr. McCauley’s negligence, Mr. Deros must show that it was foreseeable that a person of ordinary fortitude would suffer a mental injury from witnessing the accident. He has failed to do so…

[23] The cases, to which I was referred, where damages for nervous shock have been awarded to witnesses of accidents who were not physically involved in the accidents, involve accidents or events which are more shocking than the accident in this case. All the cases involved accidents in which someone has died or been seriously injured: James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Arnold v. Cartwright Estate, 2007 BCSC 1602; Easton v. Ramadanovic Estate (1988), 27 B.C.L.R. (2d) 45; Stegemann v. Pasemko, 2007 BCSC 1062; James v. Gillespie, [1995] B.C.J. No. 442 (S.C.); Kwok v. British Columbia Ferry Corp. (1987), 20 B.C.L.R. (2d) 318 (S.C.).

[24] As set out in Devji v. District of Burnaby, 1999 BCCA 599 at para. 75, the courts have been careful to limit the circumstances in which injuries for nervous shock are awarded:

The law in this province, as formulated by Rhodes, requires that the plaintiffs, in order to succeed, must experience something more than the surprise and other emotional responses that naturally follow from learning of the death of a friend or relative. Instead, there must be something more that separates actionable responses from the understandable grief, sorrow and loss that ordinarily follow the receipt of such information. In Rhodes, Taylor and Wood JJ.A. described the requisite experience as alarming and startling (and therefore sudden and unexpected), horrifying, shocking and frightening, and Southin J.A. referred to a “fright, terror or horror”.

Reasons for judgement were published last week by the BC Supreme Court, Vancouver Registry, noting ICBC agreed to pay damages to a Plaintiff who developed PTSD after a collision based on the mistaken belief that the Defendant was killed. It is worth noting that this case involves a Plaintiff and Defendant who were both involved in the crash, as opposed to a bystander, but the circumstances are such that the Plaintiff did not suffer any harm from the forces of the crash themselves or concern for their well being but rather solely based on their concern for the Defendant.
In the recent case (Lutzke v. Beier) the Plaintiff was a conductor operating a train and the Defendant pulled her vehicle into the Plaintiff’s path. A collision occurred and the Defendant accepted fault . The Plaintiff “thought for a time that the driver had been killed and that there had been a child in the vehicle who was either killed or seriously injured. As it turned out, Ms. Beier was not killed and there had been no one else in the vehicle.”.
The plaintiff advanced claims for various heads of damages which were ultimately not successful. ICBC was persuaded, however, to pay damages for the PTSD the Plaintiff suffered as evidenced by the following passage in Mr. Justice Milman’s reasons for judgement:

[2] Liability for the accident has been admitted. It is common ground that Mr. Lutzke developed post-traumatic stress disorder (“PTSD”) as a result of the accident and that he has since recovered sufficiently to return to work full time. Despite his return to work, however, Mr. Lutzke says that he continues to suffer from increased anxiety and remains vulnerable to a relapse of PTSD, particularly if he experiences another traumatic event.

[3] The parties have agreed on the quantum of all but two of the heads of damages claimed. What remains in issue is Mr. Lutzke’s entitlement to damages for: (a) future loss of income earning capacity, including future pension benefits; and (b) the cost of future care.

$170,000 Non-Pecuniary Assessment for Chronic Physical and Psychological Injuries

Written by admin on August 22, 2018. Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic physical and psychological injuries following a vehicle collision.
In today’s case (Niessen v. Emcon Services Inc.) the Plaintiff was involved in a serious highway collision in 2013. The Defendants accepted fault. The crash resulted in a multitude of injuries to the Plaintiff, many of which had a poor prognosis for further recovery. In assessing non-pecuniary damages at $170,000 Mr. Justice Brundrett provided the following reasons:

[212] I am satisfied on the basis of all of the evidence that the plaintiff’s headaches, tinnitus, cognitive difficulties, sleep disruption, anxiety, and depression were caused by the motor vehicle accident on October 20, 2013. As a result of the accident, the plaintiff also sustained various musculoligamentous injuries to the neck and lower back which, though they persisted for an extended period of time, have now largely resolved. However, the tinnitus, headaches, depression, anxiety, sleep disruption, and cognitive problems are ongoing and chronic.

[213] The plaintiff’s symptoms diminished his ability to operate at the same high level in the plumbing and heating business, caused him to fail his advanced gas fitter course, and led to drastic changes in his personality and behaviour. I accept that his injuries have generally reduced the plaintiff’s enjoyment of life including his social, recreational, and employment pursuits.

[214] The multiplicity of the plaintiff’s chronic injuries creates difficulties for treatment going forward. For instance, Dr. Prout indicated that he would be very surprised if treating the headaches removed the tinnitus. There is some possibility for treatment of the plaintiff’s depression symptoms through medication or further cognitive behavioural therapy, but I accept the consensus of medical opinion that the plaintiff’s symptoms are now well-established, and while further treatment is possible it cannot be said that such treatment will probably be effective.

[215] The descriptions of third parties and the plaintiff’s physicians accord with the plaintiff’s own account of the pre- and post-accident changes in his personality and behaviour. The nature of the changes in the plaintiff’s personality and behaviour are such that they have adversely impacted his work-related abilities, as well as his earning capacity in future years.

…

[249] I accept the plaintiff’s evidence that he suffered headaches, tinnitus, depression, social withdrawal, sleep disruption, cognitive problems including an inability to concentrate and impaired memory, anxiety, and symptoms consistent with PTSD as a result of his motor vehicle accident. Most if not all of these symptoms are chronic. The plaintiff’s neck and back pain persisted for longer than usual, but I accept that those injuries are now resolved. There is no evidence that his headaches, depression, cognition problems, and tinnitus were pre-existing conditions. I find that, apart from the neck and back pain, it is unlikely that the plaintiff will fully recover from any of the above mentioned injuries.

[250] I find that the plaintiff’s symptoms had a significant impact on his social, recreational, and employment-related functioning, his emotional well-being, and his enjoyment of life. His symptoms also affected his personality, work ethic, and general attitude toward life.

[251] There has been a fair amount of discussion among the experts and between counsel as to whether the plaintiff qualifies for a diagnosis of mild traumatic brain injury or concussion. There is disagreement about whether he qualifies for such a diagnosis, though he certainly has lingering symptoms of a kind that are sometimes associated with a concussion.

[252] I agree with plaintiff’s counsel that while certain diagnoses or labels may assist in the analysis, the focus remains on the plaintiff’s symptoms, their endurance, and their overall effect upon the plaintiff’s life. As noted in Bricker at para. 123:

[123] I would add, however, that in assessing Ms. Bricker’s claim for damages, the issue for the court is not so much the label or diagnosis attached to a particular condition, but rather the extent to which the condition has affected a plaintiff in his or her social, recreational and employment pursuits (see Bagnato v. Viscount, 1995 CanLII 418, [1995] B.C.J. No. 2752 at paras. 28-29, … (S.C.)).

[253] Having regard to the precedents cited before me, the nature and severity of the plaintiff’s symptoms in this case, his age, and the guarded possibilities for improvement, I would assess general damages at $170,000.

BC Supreme Court Gives Scathing Reasons Rejecting ICBC Doctor as "Advocate"

Written by admin on August 17, 2018. Posted in Uncategorized.

Adding to this site’s archived judgments of judicial criticism of expert witness ‘advocacy’, reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, holding a defence expert witness report as inadmissible due to advocacy.
In today’s case (Tathgur v. Dobson) the Plaintiff was injured in two separate vehicle collisions. Fault was admitted for both by the Defendants. In the course of the lawsuit the Defendants had the Plaintiff assessed by a physician who provided an opinion minimizing the Plaintiff’s injuries and their connection to the collisions. In finding the opinion inadmissible and worth no weight Madam Justice Warren provided the following harsh reasons calling the doctor an “advocate” for the defence:

[93] The question then is whether Dr. Grypma was in fact biased, impartial, or acting as an advocate for the defence. If I find he was, he is clearly unwilling or unable to fulfill his duty, and his evidence is inadmissible as not meeting the threshold requirement of “qualified expert”.

[94] Dr. Grypma included the certification required by Rule 11-2(2) in each of his reports, but that is not the end of the matter: see White at para. 48. The concern is that notwithstanding the inclusion of this certification in his reports, Dr. Grypma assumed the role of advocate for the defence. For the following reasons, I have determined that Dr. Grypma was acting as an advocate for the defence and, as a result, was not able and willing to provide fair, objective and non-partisan evidence.

[95] As noted, Dr. Grypma’s opinions rested on five primary footings. The second and third footings concerning Dr. Grypma’s rear-end accident theories are themselves opinions for which no foundation was expressed in the reports. The failure to expressly note the foundation for those opinions would not, on its own, be sufficient to exclude the reports at the initial stage on grounds of bias or advocacy. However, it became apparent that Dr. Grypma is not actually aware of an adequate foundation for these views. When asked, in cross-examination, to explain the foundation for the opinion that a rear-end accident rarely causes injury to the lower back, Dr. Grypma testified that he had attended courses with others who agreed that an injury to the lower back is rare in a rear-end accident. He did not say when he attended these courses. He did not identify the entities or institutions that offered the courses or even their subject matters. He did not identify who these others were who agreed with him. He also said that he relied on the conclusions of two professors. He did not say when those conclusions had been relayed to him or in what form, and he was able to name only one of these professors, having forgotten the name of the other. He acknowledged not having referred to any scientific publication supportive of this opinion.

[96] In the circumstances, it is not possible to evaluate the soundness Dr. Grypma’s rear-end accident theories or even determine whether they fall within the scope of his expertise. More fundamentally, however, Dr. Grypma relied so heavily on opinions for which he had no proper foundation strongly suggests that he had taken up the role of advocate for the defence. Any doubt about that was removed by Dr. Grypma’s response to being provided with a more complete set of Mr. Tathgur’s clinical records, which undermined another of the foundational footings for Dr. Grypma’s opinion.

[97] It is not clear to me why Dr. Grypma did not have all of Mr. Tathgur’s medical records, including Dr. Manga’s clinical records and the 2009 MRI, before he wrote his first report in 2011. It is apparent from his May 31, 2011 summary of the history provided by Mr. Tathgur that Dr. Grypma was aware that Mr. Tathgur had been treated by his family doctor, and that x-rays and an MRI had been performed. In other words, he knew that relevant records existed. While he is not required to conduct an investigation (Edmondson at para. 77) it would have been more helpful had he obtained access to these before offering an opinion, particularly before challenging the credibility of Mr. Tathgur’s complaints.

[98] Nevertheless, irrespective of what Mr. Tathgur told Dr. Grypma about the initial onset of pain following the first accident, it is beyond dispute that Mr. Tathgur did report pain to Dr. Manga the day after the accident and, by the time Dr. Grypma wrote his August 21, 2015 report, he must have been aware of this. Dr. Manga’s handwritten clinical records are not easy to read but the words “pain neck, low back” are legible in the clinical record for May 27, 2008, and there is also a hand-drawn sketch of Mr. Tathgur’s back with diagonal lines on it at the left side of the neck and the left low back, which is obviously intended to record the specific locations of reported symptoms. In his August 21, 2015 report, Dr. Grypma complained that Dr. Manga’s records were not legible and he said he had to “go on Mr. Tathgur’s memory as [he found] the family physician’s records were not helpful”, yet he went on to specifically note that the family physician’s records indicated normal range of motion on May 27, 2008, the day after the first accident and the same day that the words “pain neck, low back” and the sketch appear. He also referred to notations in the clinical records for September 5, 2009 and December 18, 2011 that support his theory, but made no mention of other references that did not support his theory, such as the references to spasm.

[99] Again, Dr. Manga’s records are not easy to read. It would have been understandable if Dr. Grypma had refused to comment on the clinical records at all unless they were transcribed. However, he clearly could read some of the entries and he relied on those that were consistent with his previously stated views. He cannot overcome the inescapable conclusion that he cherry-picked entries, ignoring those that undermined his opinion.

[100] Similarly, in his December 3, 2015 report, he noted that the history given to Dr. Hershler concerning symptoms the day after the first accident was materially different from that which he said Mr. Tathgur gave him such that clarification was required, but then he went on to reiterate the same opinion (that significant injury from the first accident was unlikely) based largely on the fact that Mr. Tathgur experienced little or no pain after that accident. Again, by this time he also had Dr. Manga’s clinical records, which clearly indicated complaints of pain on the day after the first accident.

[101] For the foregoing reasons, I find that Dr. Grypma lost sight of his duty to the court and instead became an advocate for the defence. His evidence is inadmissible as a result. Even if I was not prepared to exclude the evidence, for the same reasons I would give it no weight. Further and in any event, as discussed below, I accept Mr. Tathgur’s evidence that he did have significant pain the day after the first accident. Leaving aside concerns of bias, partiality and lack of independence, this finding is incompatible with a key footing for Dr. Grypma’s core opinion and, for that reason alone, I would give his opinion no weight.

Plaintiff Must "Live With The Consequences" For Failing to Beat Formal Settlement Offer at Trial

Written by admin on August 17, 2018. Posted in BC Supreme Court Costs Cases.

Failing to beat a defence formal settlement offer at trial can bring serious financial consequences. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating exactly this.
In today’s case (Gill v. McChesney) the Plaintiff was injured in a vehicle collision and sued for damages. Prior to trial the Defendant made two formal settlement offers, the second of which was $208,750. The Plaintiff rejected this and proceeded to trial where she sought “damages in excess of $1 million“. The trial result was not nearly so favourable with damages being assessed at $87,250.
The Defendant sought to strip the Plaintiff of all of her costs post their formal settlement offer. This would result in a swing in the tens of thousands of dollars. The Court granted this request noting that while it may substantially diminish the Plaintiff’s recoverable damages she must “live with the consequences” of running the trial. In reaching this decision Mr. Justice Abrioux provided the following reasons:

[54] When I apply the legal framework to which I have referred and consider all the relevant factors, the real issue in my view is whether the plaintiff should pay the defendants’ costs after August 18, 2015, or whether the parties should bear their respective costs from that date onwards.

[55] While not entirely analogous, this case does have certain similarities to those in Dennis, where the finder of fact concluded the plaintiff was untruthful and/or misled experts, as opposed to the situation where the plaintiff cannot be expected to know in advance how the court might assess his/her credibility in the witness box.

[56] Here, the plaintiff did not accept a reasonable offer and the award at trial was significantly less than either the First or the Second Offers.

[57] As was stated in Luckett v. Chahal, 2017 BCSC 1983 at para. 47:

[47] But what happened here is that the plaintiff, well aware of the significant credibility issues at stake, chose to gamble or “take his chances” by going to trial and lost. He should live with the consequences which Rule 9-1(4) seeks to avoid: Wafler v. Trinh, 2014 BCCA 95 at para. 81.

[58] In my view, that is what occurred in this case.

[59] Accordingly, the plaintiff is entitled to her costs and disbursements at Scale B to August 18, 2015, and the defendants to their costs and disbursements at Scale B thereafter.

$95,000 Non-Pecuniary Assessment for Chronic, Partly Disabling Headaches

Written by admin on August 14, 2018. Posted in ICBC Headache Cases.

Reasons for judgment were published today by the BC Supreme Court, Duncan Registry, assessing damages for chronic headaches following a collision.
In today’s case (Thomson v. Thiessen) the Plaintiff was injured in a 2012 collision. The crash resulted in chronic neck pain and headaches which at time were severe enough to cause disability. The prognosis for full recovery was poor. In assessing non-pecuniary damages at $95,000 Madam Justice MacKenzie provided the following reasons:

[50] While I am guided by these various authorities, every case is different and must be decided on its own particular circumstances. In the present case I accept that Mr. Thomson continues to suffer from mild to moderate, and on occasion, severe headaches as a result of the motor vehicle accident on November 3, 2012. I also accept that, depending on how much he exercises and how he conducts himself when working on his computer, his headaches will affect to a certain degree his enjoyment of life in the future, and according to the medical evidence, this could be long lasting. At the same time, as confirmed by Dr. Robinson, Mr. Thomson does not suffer from throbbing migraine headaches. In fact Mr. Thomson clearly stated that when he does have a headache or feels one is about to occur, he takes two Ibuprofen and sleeps for a couple of hours, feeling better in due course. While this is certainly a significant interruption to his enjoyment of life, relief is relatively straightforward, even though not long lasting, depending on his daily activities.

[51] Considering the totality of the circumstances, all the factors outlined in Stapley, the positions advanced by both parties and the various authorities counsel have provided, I am satisfied that a reasonable and fair award for non-pecuniary damages is $95,000.

BC Court of Appeal – Expert "Fact" Witnesses Entitled to Only $20 Fee for Trial Attendance

Written by admin on August 9, 2018. Posted in BCSC Civil Rule 14.

Useful reasons for judgement were published today by the BC Court of Appeal confirming that when a professional is summoned to testify at trial about facts they have knowledge of (as opposed to privately retained expert witnesses to give opinion evidence) they are entitled to no more than the $20 fee that must accompany a subpoena.
In today’s case (Luis v. Marchiori) the Plaintiff was injured in two vehicle collisions and sued for damages. At trial her family doctor testified but not as an expert opinion witness, but rather as a witness of fact. The Plaintiff paid $2,651 to the doctor for this service and tried to recover this as a disbursement. In refusing to allow this the BC Court of Appeal noted that when a professional testifies as to facts they are entitled to nothing more than any other fact witness. The BC Court of Appeal provided the following reasons:

[5] It is useful to begin by distinguishing between expert fact evidence and expert opinion evidence. Witnesses who become involved in litigation due to their profession—such as a treating doctor or an engineer overseeing a construction project—may be called to testify about their observations. Although the observations may be beyond the knowledge of a layperson, that testimony is not opinion evidence. Examples include a witness describing radiological images, identifying a microbe seen under a microscope, or identifying the pathological process seen on surgery or autopsy. Such evidence is sometimes described as “non-opinion expert evidence”: Robert B. White, The Art of Using Expert Evidence (Toronto: Canada Law Book, 1997), ch. 2 at 16‒21.

[6] Justice Schultes addressed this distinction in Anderson v. Dwyer, 2009 BCSC 1872 at para. 14 in the context of the Rule requiring notice of opinion evidence:

… However, the witness’s factual narrative of the actions he took and the observations he made, including describing without interpretation, the anatomical features he observed in the x-rays does not amount to offering an opinion and does not offend the Rule. The fact that he brings special training or experience to bear in having taken those actions and made those observations is not determinative. It is whether he draws inferences or offers opinion beyond what the actual evidence itself is capable of revealing.

[Emphasis added.]…

[46] Although I agree that some professions are more regularly called upon to testify in court than others, it is not readily apparent that a particular individual will be called upon more often. Further, these appeals have focused on the potential financial hardship to professionals such as physicians, engineers and lawyers called to testify as fact witnesses, but as Justice Park observed in Lonergan v. The Royal Exchange Assurance, (1831), 131 E.R. 280 at 283, “time to a poor man is of as much importance as to an attorney.” Indeed, the loss of a day’s work at minimum wage may be a greater relative hardship to a lay witness than the loss of a professional person’s earnings. In addition, to focus on monetary losses alone may be too narrow. Although some witnesses make a sacrifice of time and labour and thus of profits and wages, others sacrifice privacy, and experience the “disagreeable consequence of disclosure”: Wigmore on Evidence, vol. 8 at 72.

[47] In my view, the interpretation Ms. Luis advances is of no small significance, departing as it would from the longstanding tradition that attendance at trial is “an inherent burden of citizenship”. As John Henry Wigmore put it so eloquently:

That the ordinary witness should be paid more than the nominal dollar — i.e., should be fully indemnified for sacrificing his day’s livelihood in order to perform his testimonial duty — is a plausible assertion. The argument against it, that the total cost of reimbursing highly paid citizens would be prohibitive, gives no real answer, for the state is bound to supply the necessities of justice however expensive. The best answer is that the testimonial duty, like other civic duties, is to be performed without pay, the sacrifice being an inherent burden of citizenship. Neither for military service nor for public office can the citizen claim that he shall be paid on a scale which will bear any equable proportion to the loss of his livelihood’s income. Any other principle would be worthy only of a purely mercenary community. If the sacrifice made is a real one, the dignity of the service rendered should ennoble it. The sense of civic duty done must be the consolation.

Wigmore on Evidence, vol. 8 at 136. [Emphasis added.]

[48] If there are sound policy reasons for departing from that tradition and the present regime, it is in my view for the legislature and not the judiciary to effect that change.

[49] In summary, I am of the view that the payment of an attendance fee to expert fact witnesses beyond the fee prescribed in Schedule 3 is not a disbursement recoverable from the opposing party. I would therefore dismiss the appeals, with thanks to all counsel for their able and thorough submissions.

Inspire Sports Victoria Opens Doors to BC's Biggest Gymnastics Facility

Written by admin on August 6, 2018. Posted in Uncategorized.

Apologies for this off-topic post but I am proud to announce that a project I have been involved with has reached completion.
Inspire Sports Victoria, BC’s largest and newest gymnastics facility, has opened its doors in Greater Victoria! We had a great open house this weekend. Thank you to everyone who came by!
We couldn’t be prouder of our team for their efforts in hosting an amazing open house or more grateful to everyone from greater Victoria who took the time to come through our doors!
With the open house complete our final flooring will be installed and final equipment assembled in the coming days. Thank you everyone who helped make the dream of bringing a world class recreational and competitive gymnastics facility to Victoria a reality! See you all at the gym this week!
I want to thank Cleve Dheensaw of the Victoria Times Colonist for this excellent article announcing our opening.
Inspire Sports Victoria caters to physical literacy for all, from entry level recreational classes to competitive training for elite athletes.
Our website can be found here and you can also follow us on Facebook and Instagram!