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A Costs Argument That "Ought Not To Have Been Made"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 58 Comments on A Costs Argument That "Ought Not To Have Been Made"

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, criticizing a costs argument advanced by defense counsel after failing to best the Plaintiff’s formal settlement offer at trial.
In today’s case (Tenhunen v. Tenhunen) the plaintiff was injured when she tripped and fell on a deficient ramp constructed by the Defendant.  At trial both were found equally to blame for the incident.  Prior to trial the Plaintiff made a formal settlement offer of $80,000.  The Defendant did not accept this and the trial damages awarded amounted close to $125,000.
The Plaintiff sought post offer double costs but the Defendant opposed arguing, in part, that the Defendant was of modest means.  The court, suspicious of this argument asked about whether the claim was insured to which Defence counsel refused to answer citing the Code of Professional Conduct.  Plaintiff’s counsel then “provided a copy of the policy of insurance that the defendant was obliged to produce” which led to the following judicial criticism of the defence argument and an award of partial post offer double costs –

[27]        The defendant’s principal argument is based on Rule 9-1(6)(c), as she points to her own unfortunate circumstances, subsisting barely on a disability pension, and contrasts this to the far better financial position enjoyed by the plaintiff, who had been employed on an income between $77,000 and $101,511 in the five years between 2009 and 2013. The defendant argues that this financial disparity militates against an order for double costs. This submission, bearing in mind the evidence at trial, raises a logical question of insurance coverage.

[28]        The plaintiff and defendant are mother and daughter, respectively. They were and are close. The defendant ordinarily lives in the rented house where the plaintiff fell and suffered her injury, and from the photographs submitted into evidence, that residence would not suggest an ability to pay substantial damages. It is unlikely in the extreme that the plaintiff would sue her daughter, and proceed to trial, if the only prospects of recovery were limited to the defendant’s disability pension.

[29]        While the defendant’s straightened finances would argue against her being able to afford insurance premiums, those same financial constraints would argue more strongly against the defendant being able to afford to retain senior counsel for the entire action, or to offer to settle her mother’s claims for $80,000 all-inclusive on October 30, 2014. I recognize that an offer to settle is not a guarantee of payment, as it would simply have entitled the plaintiff to enter judgment for the amount of the offer, had she accepted it. In these circumstances, however, the plaintiff would have every reason to know that her daughter had no ability to pay the amount offered from her own funds.

[30]        The defendant’s argument under Rule 9-1(6)(c) made the question of insurance relevant to the costs issue, and by memorandum to counsel I invoked Rule 7-1(4) and asked if there were a policy of insurance to which the defendant could turn for indemnity. The Rule provides:

Despite subrule (3), information concerning the insurance policy must not be disclosed to the court at trial unless it is relevant to an issue in the action.

[31]        Counsel for the defendant replied to this question in this way:

Finally, and more on the basis of a footnote, the Court has inquired as to whether there is a policy of insurance that the Defendant may look to for indemnification of damages and Costs. It would be entirely inappropriate for defence counsel to make any submission as to whether Ms. Kim Tenhunen may or may not look to a policy of insurance for indemnification. Defence counsel has a dual retainer in the circumstances and owes an obligation to both the Defendant and to an insurer not to compromise their respective interests: Professional Conduct Handbook, Chapter 6.4(a-d).

[32]        The Code of Professional Conduct for British Columbia (BC Code) replaced the Professional Conduct Handbook on January 1, 2013. I have examined the previous rule cited by counsel, and see nothing there to prevent the disclosure requested. I have examined the BC Code, with the same results.

[33]        The most charitable interpretation of counsel’s argument is that it is hypothetical. Even on that assumption, it still does not respond to the question posed under Rule 7-1(4), and that is whether the existence of a policy of insurance is relevant to the costs issue, and, if it is, whether there is a policy of insurance available to the defendant in this case.

[34]        How a lawyer’s duties are supervised by the Law Society – to both an insurer who retains the lawyer and the insured on whose behalf the lawyer acts under the retainer – have little to do with the question raised in this application. Nothing in the question put to counsel could raise a risk of dividing counsel’s loyalties to an insurer and insured, assuming that is the relationship that has existed.

[35]        Counsel for the plaintiff has provided a copy of the policy of insurance that the defendant was obliged to produce as part of pre-trial document discovery. The argument against double costs based on the parties’ relative financial circumstances ought not to have been made.

Self Represented Litigant Hit With $19,000 Costs Award After Injury Claims Fall Short

Written by admin on . Posted in Uncategorized. 49 Comments on Self Represented Litigant Hit With $19,000 Costs Award After Injury Claims Fall Short

Reasons for judgement were released today by the BC Supreme Court, Kelowna Registry, largely rejecting personal injury claims following two relatively modest collisions.
In today’s case (Ducharme v. Bradler) the Plaintiff was involved in two collisions in 2010.  The Defendants admitted fault. Prior to trial ICBC tabled two formal settlement offers, the first for $21,000 and the second for $40,000.   The Plaintiff rejected these and proceeded to trial.
At trial the Court raised concerns about the Plaintiff’s reliability and largely rejected her claims awarding global damages of $1,500 for both collisions.  After learning of the formal offers the Court went on to award $19,000 in costs against the plaintiff.  In reaching this decision Madam Justice Fitzpatrick provided the following reasons:

[45]        THE COURT: In the ordinary course, Ms. Ducharme would have been awarded her costs in both actions. In accordance with Rule 15-1(15)(b), the costs of this two day trial would be $9,500 plus disbursements. However, defence counsel has referred me to previously delivered offers to settle, which I have the discretion to consider: see Rule 15-1(16).

[46]         These actions were commenced in December 2011 and July 2012. Mr. Spinks has outlined the settlement offers that have been extant for some time. In January 2012, there was an offer in the amount of $21,000; and, in April 2014, there was an offer in the amount of $40,000. Clearly, those offers substantially exceed the result in this trial and, in my view, should reasonably have been accepted by Ms. Ducharme, particularly when it became apparent that she could not or would not marshal the medical evidence she needed in proving her claims. No submissions were made on the relative financial circumstances of the parties.

[47]        I accept the position of the defence in respect of the award of costs. In the circumstances, I am satisfied that a double costs award is appropriate: Gichuru v. Pallai, 2013 BCCA 60. Accordingly, costs are awarded in favour of the defendants in the sum of $19,000 plus reasonable disbursements.

$150,000 Non-Pecuniary Assessment for Bilateral Wrist and Femur Fracture

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Wrist Injury Cases.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for bilateral wrist fractures leading to permanent partial dysfunction and a femur fracture.
In today’s case (Ishii v. Wong) the Plaintiff was involved  in a 2012 motorcycle collision caused by the Defendant.  He sustained fractures to both wrists, and his right femur. These injuries requires surgical intervention including the installation of hardware in both wrists and his right leg.  His dominant wrist did not fully heal and was left with permanent dysfunction.  In assessing non-pecuniary damages at $150,000 Madam Justice Gerow provided the following reasons:

[148]     In this case, the nature of the injury was severe. Mr. Ishii was young when he was injured in the 2010 accident. Mr. Ishii has been left with chronic pain and permanent partial disability of his right dominant wrist, and chronic pain in his right leg. The permanent partial disability in his right dominant wrist impacts his ability to rotate items and do heavy repetitive tasks. He is unable to stand or walk for long periods of time, and cannot run for any distance. As a result of the injuries he sustained in the 2010 accident, Mr. Ishii has not been able to return to some of the recreational activities he enjoyed before and is precluded from trying many new recreational activities, such as racket sports, and climbing, and engaging in activities that require repetitive heavy lifting, or full supination of his right hand. Mr. Ishii had to move back home, and lost his independence as a result of the accident. He has suffered from a depressed mood as a result of his ongoing pain and restrictions.

[149]     As set out above, both Mr. Ishii and the Wong defendants have provided cases which support their positions regarding the appropriate award of general damages for the 2010 accident. In my view, the case that is most similar to the case at bar is Hildebrand. In Hildebrand, a 21 year old auto collision repair technician suffered fractures to his right ankle, right wrist and left femur, in addition to soft tissue injuries, abrasion and chipped teeth. The plaintiff underwent surgery to repair the fractures and spent six days in hospital. He was left with ongoing pain and a partial disability. General damages were assessed at $135,000. In my view, the injuries and residual problems Mr. Ishii suffers are slightly more serious. However, as noted in Stapley, while other cases are helpful, an award will vary in each case to meet the specific circumstances of the case.

[150]     Having considered the factors set out in Stapley, it is my view that the appropriate award for pain and suffering arising from the injuries Mr. Ishii sustained in the 2010 accident is $150,000

$65,000 Non-Pecuniary Assessment for Chronic Shoulder Injury

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

Adding to this site’s archives of pain and suffering awards for shoulder injuries, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing non-pecuniary damages at $65,000 for a chronic shoulder injury.
In the recent case (Zhang v. Ghebreanenya) the Plaintiff was injured as a passenger in a taxi which lost control and left the roadway.  The taxi driver was found fully liable.  The collision caused a chronic shoulder injury to the plaintiff with symptoms persisting ot the time of trial.  In assessing non-pecuniary damages at $65,000 Mr. Justice Grauer provided the following reasons:

[27]        In his evidence at trial, however, Dr. Masri explained it this way.  Because of the symptoms of pain caused by the effect of the accident on his pre-existing degenerative condition, Mr. Zhang’s shoulder became deconditioned and weak from lack of use.  Normally, the remedy for this, once the pain subsides (as it largely has) is aggressive therapy to recondition the shoulder muscles.  In Mr. Zhang’ case, however, aggressive reconditioning is not possible because of the lack of an intact rotator cuff (the degenerative process).  But for the accident, he would not be in that same state of weakness.  Because of his pre-existing degenerative condition, he is unable to remedy it.

[28]        This explanation is consistent with the evidence of Dr. Kokan, and I accept it.  I find that because of the accident, Mr. Zhang has been left with significant weakness and intermittent pain in his right shoulder.  That a pre-existing degenerative condition contributed to this state of affairs does not interrupt the chain of causation between the accident and Mr. Zhang’s current condition: Athey v Leonati, [1996] 3 SCR 458.

[29]        In assessing Mr. Zhang’s loss, however, I take into account that his original pre-accident condition included arthritis in the right elbow that limited the strength and range of motion in that joint.  I also take into account what I consider to be a real and substantial possibility that the pre-existing rotator cuff tear would have led to symptoms of shoulder weakness and discomfort in the future in any event, albeit to a lesser extent than he now faces.

[30]        With respect to the impact of his injuries, I observe that Mr. Zhang had retired from TCM long before this accident.  The evidence of his daughter and granddaughter did not support the contention that he has been frustrated in attempting to pass on the family skill set.  The evidence does indicate that he stopped driving his youngest granddaughter to school and lessons after the accident, but this coincided with his eldest granddaughter obtaining a motor vehicle.  Nevertheless, I am satisfied on the whole of the evidence that the significant ongoing weakness in Mr. Zhang’s right shoulder and arm has had an impact on his ability to drive.  I also find that he has been impaired in his ability to prepare food (particularly to chop vegetables), to perform at least some aspects of household cleaning, and to lift heavy objects.  Socially, he goes out much less than he used to before the accident…

[54]        The plaintiff particularly commended to my attention the Gaudreault case, which involved a 43-year-old plaintiff who suffered tendon tearing in the shoulder, and had pre-existing but asymptomatic degenerative changes in the shoulder.  Mr. Justice Thompson awarded $75,000.  I note, however, that by the time of trial, the plaintiff’s shoulder continued to trouble him all day, every day, with daily neck pain and low back pain. 

[55]        No two cases, of course, are the same.  In this case, taking into account the plaintiff’s age, his pre-existing condition, the limitations imposed by his injury, the fact that the weakness will be ongoing, the impact on his housekeeping capacity and his ability to participate in family and social life, I assess his damages at $65,000.

A Jury "Does Not and Can Not Have a Role in Determining Costs"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 42 Comments on A Jury "Does Not and Can Not Have a Role in Determining Costs"

Reasons for judgement were released today by the BC Supreme Court, Cranbrook Registry, confirming a post trial ‘costs swing’ should not be avoided because the net payment will be less than a jury intended.
In today’s case (Grieve v. Bennett) the Plaintiff was injured in two motor vehicle collisions.  Prior to trial ICBC made a formal settlement offer of $196,300.  The Plaintiff declined this offer and proceeded to trial seeking over $1 million in damages.  The jury verdict came in at $140,300.
In arguing that the Defendant should not be awarded post offer costs the Plaintiff noted that the costs swing would be some $80,000 and this would “thwart” the intentions of the jury.  In rejecting this submission Mr. Justice Steeves noted as follows:

[59]        The plaintiff submits that awarding costs to the defendants from the date of their offer (January 16, 2015) would thwart the clear intention of the jury because it would reduce the amount available to the plaintiff by about $80,000. This figure includes the costs of the defendants (estimated by counsel for the plaintiff to be $54,000). It also includes the costs of the plaintiff because the effect of awarding the defendants costs would “deprive the plaintiff of his costs.”

[60]        In my view the answer to this submission is that the jury does not and cannot have a role in determining costs. Their role is to assess damages not costs. It follows that I do not agree with the plaintiff on this issue.

BC Court of Appeal Clarifies Limits of "Rescuer" Law

Written by admin on . Posted in ICBC Liability (fault) Cases. 165 Comments on BC Court of Appeal Clarifies Limits of "Rescuer" Law

The law recognizes that if a person’s negligence puts one in peril, a rescuer injured in the course of rescue can claim damages against the person who created the peril.  Reasons for judgement were released today by the BC Court of Appeal discussing the scope of rescuer law.
In today’s case (Ray v. Bates) the parties were involved in a motor vehicle collision in icy conditions.  The Plaintiff claimed the collision was caused by the Defendants negligence.  Following the collision the Plaintiff slipped and fell while walking with the intention of asking first responders to contact road maintenance authorities to get the icy road salted or sanded.
The Plaintiff argued the Defendant was responsible for the slip and fall as he was acting as a ‘rescuer’ at the time.  In upholding a trial dismissal of the claim the BC Court of Appeal provided the following reasons addressing the scope of the rescuer principle:

[14]        The rationale for special treatment of rescuers is that where a person’s negligence puts another person (or him/herself) in peril, it is entirely foreseeable that a bystander will react by attempting to eliminate the peril. The classic statement of the doctrine is that of Cardozo J. in Wagner v. International Railway Co. (1921), 232 N.Y. Rep. 176 at 180, 133 N.E. 437 at 437-8:

Danger invites rescue. The cry of distress is the summons to relief. The law does not ignore these reactions of the mind in tracing conduct to its consequences. It recognises them as normal. It places their effects within the range of the natural and probable. The wrong that imperils life is a wrong to the imperilled victim; it is a wrong also to his rescuer…. The risk of rescue, if only it be not wanton, is born of the occasion. The emergency begets the man. The wrongdoer may not have foreseen the coming of a deliverer. He is accountable as if he had.

[15]        In Videan v. British Transport Commission, [1963] 2 Q.B. 650, at p. 669, Lord Denning, M.R. said:

Whoever comes to the rescue, the law should see that he does not suffer for it. It seems to me that, if a person by his fault creates a situation of peril, he must answer for it to any person who attempts to rescue the person who is in danger. He owes a duty to such a person above all others. The rescuer may act instinctively out of humanity or deliberately out of courage. But whichever it is, so long as it is not wanton interference, if the rescuer is killed or injured in the attempt, he can recover damages from the one whose fault has been the cause of it.

[16]        These pronouncements were cited with approval by the Supreme Court of Canada in Horsley v. MacLaren, [1972] S.C.R. 441 at 444 and 467, and in Corothers v. Slobodian, [1975] 2 S.C.R. 633 at 638‑9 and 640‑41. They were also cited in Martin v. American International Assurance Life Co., 2003 SCC 16.

[17]        In Toy v. Argenti (1980), 17 B.C.L.R. 365 at 371-2, Esson J., as he then was, adopted statements describing the contours of the rescuer doctrine by Lord Jamieson of the Scottish Court of Sessions (Inner House) inSteel v. Glasgow Iron and Steel Company, [1944] S.C. 237 at 267:

[T]he following propositions … may be extracted …: (1) The intervention of human action does not necessarily per se break the chain of causation between the negligence and the injury sustained. (2) To entitle the sufferer to damages, such intervention must have been reasonable and such as might have been in the contemplation of the wrongdoer. (3) In determining what is reasonable in the circumstances the interests sought to be protected must be measured in comparison with the risks involved in the action taken. (4) If the action taken is reasonable, the injured person will not be debarred from recovering damages by his not having adopted the best possible course in the circumstances, or by his having made a mere error of judgment: but he will be debarred if his action is unreasonable and unwarrantable and outside the exigencies of the emergency: and (5) It is not essential that the action should have been taken on the impulse of the moment. The same result will follow if it arises from a natural response to avert danger after time for deliberation on the consequences of the risk taken.

To these I would add that, as the instinct to save human life is greater than the instinct to save property, a hazardous intervention for the former purpose is more likely to be a natural and probable consequence of a negligent act than one for the latter, and in the reasonable contemplation of the wrongdoer.

[18]        While Steel was not a common law case, I accept, as did Esson J., that the propositions referred to are also applicable in the common law.

[19]        There are a number of British Columbia cases in which plaintiffs have attempted to recover for slip and fall injuries that occurred while walking along roads in the aftermath of motor vehicle accidents. In Goodman v. Baxendall (1991), 8 B.C.A.C. 144, the plaintiff was involved in a motor vehicle accident on a hill. After the collision, in order to warn approaching traffic that there were stopped vehicles on the highway, she walked up the hill, but slipped and fell, resulting in personal injury. The trial judge denied recovery, holding the injury was not caused by the defendant’s negligence. This court allowed an appeal, saying at 146-7:

[T]he proper approach here is to ask whether it was reasonably foreseeable that following an accident such as this and in these circumstances someone ought to walk up the roadway, and would walk up the roadway, to warn oncoming traffic of the danger of the vehicles on the roadway over the crest of the hill and, that being so, was it reasonably foreseeable that in those conditions that person could slip, fall and sustain further injury? The trial judge found the plaintiff walking up the highway was a sensible thing to do. That being so, in my opinion it follows that what happened here was reasonably foreseeable as a consequence of the negligence of the driving of the defendants and they are, as a result, responsible in law for this slip and fall and the consequent damages.

[20]        On the other hand, in Schlink v. Blackburn (1993), 109 D.L.R. (4th) 331 (B.C.C.A.), the plaintiff’s wife was involved in a motor vehicle accident outside their home. The plaintiff ignored the accident until he learned that his wife was involved, at which time he rushed out of his house, tripping on the way out and injuring his ankle. The trial judge awarded damages, treating the case as a rescue case. This court disagreed, saying at 339:

This is not a “rescue case” any more than it is a “nervous shock” case. There is no evidence of danger, escape from entrapment, risk of death from delayed treatment or otherwise which would support such a classification. Accordingly, the “rescue case” authorities cited to us must be distinguished along with the authorities dealing with “nervous shock” cases.

[21]        Finally, I will refer to Bridge v. Jo (1998), 53 B.C.L.R. (3d) 338 (S.C.), in which a woman went to assist a person involved in a motor vehicle accident. After attending on the accident victim, she concluded that she should call an ambulance. While walking down the icy road toward her home to do so, she slipped and fell. Mr. Justice Boyle found that it was reasonably foreseeable that the defendant’s negligence would result in an injury to a rescuer, and found for the plaintiff.

[22]        In rescue cases, the law does not find the chain of causation to be broken by the rescuer’s actions because they are considered to be foreseeable consequences of the peril created by the negligence. In order for a plaintiff to bring him or herself within the principles applicable to rescue cases, therefore, the plaintiff must demonstrate that his or her actions were motivated by a reasonable perception of a peril that was caused by the defendant’s negligence.

[23]        In my opinion, the plaintiff fails to meet this requirement in two respects. First, the plaintiff could not reasonably have perceived a peril in the circumstances of this case. Everything was under control, and there was no reason to believe that road maintenance authorities had not been advised of the situation. This is what the judge meant when he said “Whatever else may be said of the plaintiff’s decisions, it cannot be said that he needed to walk to the ambulance to summon road maintenance personnel when all of the emergency personnel described were already in attendance.” He was not applying a standard of necessity in rescue cases, but rather was making a finding that there was no purpose to be served by the plaintiff walking on the road.

[24]        The plaintiff’s claim to be a “rescuer” in this case must also fail because any peril that the plaintiff was attempting to alleviate was one that was unconnected with the accident. This was not a case (like Bridge) where the plaintiff was attempting to assist a victim of the accident, nor was it a case (like Goodman) where he was attempting to reduce the danger posed to other drivers by the detritus left by the accident. The plaintiff was attempting to contact road maintenance officials to deal with the slipperiness of the road. That problem was purely a product of weather conditions, and not of the accident.

"Candid" Expert Witness Impresses BC Supreme Court

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I have spent much time on this blog highlighting expert witnesses who have been criticized by trial judges.  On this note it is refreshing to see when an expert witness is complimented by the Court for being candid in their role.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, doing this.
In today’s case (Gill v. Bhuller) the Plaintiff was involved in a 2010 collision caused by the Defendant.  She was ok at the scene and did not experience any symptoms until the following day.  She ultimately developed chronic soft tissue injuries.  The Court assessed non-pecuniary damages at $75000.
In the course of the litigation the Defendant had the Plaintiff examined by a physician that agreed she had ongoing symptoms from the collision which were expected to be chronic.  In complimenting the physician’s candid testimony Mr. Justice Macintosh provided the following reasons:
[25]         I was impressed by the testimony of Dr. Calvert called by the defence, because he was notably candid in his assessment of Ms. Gill, in keeping with the ethical responsibilities of an expert witness.  He accepted that she suffers ongoing pain.  He formed no impression that she malingers and he believed that she is genuine in searching for the cause of her problems.  He accepts that it is unlikely Ms. Gill’s symptoms will go away, and he can only speculate that she may see improvement.

$75,000 Non-Pecuniary Assessment For Trochanteric Bursitis and Plateaued STI's.

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries and bursitis.
In today’s case (Diep v. Cunha) the Plaintiff was a pedestrian struck by a vehicle in 2010.  The motorist was found fully at fault.  The Plaintiff suffered soft tissue injuries which were plateaued by the time of trial along with a chronic hip injury which te court attributed to bursitis.  In assessing non-pecuniary damages at $75,000 Mr. Justice Verhoeven provided the following reasons:

[54]         I accept that the plaintiff suffered what can be described as soft tissue type injuries to her low back, left hip and thigh, and left knee in the accident.  These injuries have shown slow but substantial improvement over the course of more than four years since the accident.  It is possible that the injuries have plateaued as suggested by Dr. Fuller and to a lesser degree by Dr. Hershler. However her G.P., Dr. Kam, only states that her aches and pains and limitations will persist for an extended time.  In my view it is clear that the plaintiff’s condition can continue to improve, especially if she engages in the kinds of treatments suggested by Dr. Horlick. 

[55]         With respect to her low back pain, I prefer the opinion of Dr. Horlick to that of Dr. Fuller.  Dr. Fuller diagnosed sacroiliac rotation and malalignment. In his view while manual therapy could assist with the alignment problem, it might do more harm than good.  On the basis of his diagnosis he thought that remedial exercise would not likely help.  However, as he conceded, Dr. Fuller was quite unsure of the plaintiff’s diagnosis.  I am not persuaded that he is correct that her low back problem is other than soft tissue in nature. On that basis, the exercise therapy recommendations of Dr. Horlick are preferable, and in my view are supported by the other opinions and the course of her treatment and recovery so far. That is, physiotherapy and rehabilitation have been of benefit in the past.

[56]         I also prefer Dr. Horlick’s diagnosis of trochanteric bursitis as being the main problem with her left hip. ..

[77]         These authorities are helpful in that they serve neatly to bracket the appropriate award in this case.  Considering all the circumstances in this case, in my view $75,000 is a fair and reasonable award of non-pecuniary damages. This award includes $10,000 for her loss of housekeeping capacity, which I find should be recognized as an aspect of her non-pecuniary loss in the circumstances of this case.

"It Makes Little Sense" To Require Continuous Particulars of Damages

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Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, finding that “it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed”.
In today’s case (Campbell v. Bouma) the Plaintiff was injured in a collision and sued for damages.  The claimed losses included past wage loss and special damages.  ICBC demanded that the Plaintiff provide particulars of “any claim of loss of earnings to date” and “of her out of pocket expenses”.
In dismissing these requests Master McDiarmid found that the Plaintiff was cooperative in the litigation and that it made little sense to require such claims to be particularized in the earlier stages of litigation.  The Court provided the following reasons:

[36]        The way the demand for particulars is framed, it seeks particulars in relation to past wage loss and ongoing or future wage loss. Future wage loss is usually awarded as a loss of capacity claim, unless there is a specific determinable actual future wage loss, such as known time off for future surgery.

[37]        It is trite, of course, that “past wage loss” is determined as of the date of trial. In this case, no trial date has been set.

[38]        Cases require trial management conferences. It is typical for the presider at a trial management conference to order particularization of wage loss and an updated particularization of special damages, so that the defendant is aware of those claims close to the trial date.

[39]        Applying proportionality principles, it makes little sense to require a plaintiff to be continuously updating past wage loss and special damages claimed; those claims should be disclosed as they are known to enable an efficient examination for discovery, but often do not require formal particularization, such that they become part of the pleadings, until close to the trial date…

[44]        The particularization sought respecting specials resulted in plaintiff’s counsel providing a document listing specials; virtually all of those listed specials appear to have been disclosed by the plaintiff in her June 17, 2014 list of documents.

[45]        The particularization sought respecting “wage loss” was actually for “loss of earnings both past and prospective.” An order for past wage loss particularization can be appropriate; as quoted by Walker J. in Mansoorciting Cullen J., at para. 19:

…Here the defendant is necessarily seeking particulars of the ongoing effect of the injuries on the ability of the plaintiff to earn income … Those are matters of evidence and logical reasoning and inference not amendable to particulars.

[46]        Unlike the situation in Mansoor, the defendant in this case has some wage information that was available between the date of the accident, September of 2011, and March 14, 2012. The evidence before me is that plaintiff’s counsel has written to the employer and, no doubt will be providing updated information when received. There was nothing communicated to the plaintiff or her counsel of any particular urgency; they were working under the assumption that information and resulting disclosure were required to enable the defendant sufficient time to prepare for an examination for discovery scheduled for November 3, 2015.

[47]        Exercising my discretion after considering all of the circumstances in this case and applying proportionality, as I am required to do, the orders sought for particulars in paragraphs 1 and 2 of the notice of application are dismissed.

Private MRI Obtained for Diagnositic Puroses Producable in Injury Litigation

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Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a plaintiff to disclose the results of a private MRI to defendants.
In today’s case (Prothero v. Togeretz) the Plaintiff was injured in a collision and sued for damages.  In the course of the lawsuit the Plaintiff’s physician wished for the Plaintiff to have an MRI and asked that this be obtained privately to expedite matters.  ICBC refused to pay for this service so the Plaintiff arranged to do so privately.  The Plaintiff did produce the MRI images arguing these were privileged.  The Court disagreed and ordered them to be produced.  In reaching this decision Master Caldwell provided the following reasons:

[10]         On the material before me I am unable to agree with plaintiff counsel’s assertion of litigation privilege or solicitor’s brief privilege. It appears clear on the material that the MRI was requested by Dr. Fernandes as part of his course of investigation and treatment of the plaintiff for injuries resulting from the motor vehicle accident; he then obtained the results and referred the plaintiff to a specialist for further assistance in diagnosis and treatment. Dr. Mutat was a treating doctor at the time this took place and only took on the role of expert at a later date when approached by plaintiff’s counsel.

[11]         In the result, the MRI disk is producible and is ordered produced; it came into existence for diagnostic and treatment purposes at the request of Dr. Fernandes, not for litigation purposes at the instance of plaintiff’s counsel. In this regard it would seem that the cost of the MRI will be addressable as a special damage matter relating to medically necessary investigation and treatment rather than as a disbursement in the litigation however that will remain to be determined in the fullness of time.