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Driver Found 60% At Fault for Rear End Crash After Failing to Activate Hazard Lights

Written by admin on . Posted in ICBC Liability (fault) Cases.

The BC Court of Appeal released reasons for judgement today upholding a trial judgement finding a motorist who was rear-ended 60% liable for the collision for failing to have their hazard lights activated prior to the crash.
In today’s case (Langille v. Marchant) the Plaintiff was involved in a crash which left her vehicle stopped in the middle lane of a bridge.  A few minutes later her vehicle was rear ended.  The BC Court of Appeal found it was not unreasonable for the Plaintiff to have not moved her vehicle prior to the second collision, but that the failure of her to activate her hazard lights was negligent and upheld the trial finding placing 60% of the blame on this omission.
In reaching this conclusion the Court of Appeal provided the following reasons:

[19]         Activating emergency flashers is a step Ms. Langille certainly could have taken. It was open to the trial judge to find that it was negligent on the part of Ms. Langille to obtain particulars from the other driver before ensuring the safety of the location of the accident, or at least improving the situation for oncoming drivers by activating her flashers. It was also open to the trial judge to find doing so would have reduced the likelihood of impact or the severity of the impact that occurred. That is the logical implication of the finding that Ms. Marchant’s late recognition of the hazard caused or contributed to the accident. The activation of flashers would have made Ms. Langille’s car more visible and made it harder for Ms. Marchant to fail to notice its presence or note earlier that it was not moving, and to take earlier evasive measures.

[20]         As this Court noted in Hansen v. Sulyma, 2013 BCCA 349, when considering the trial judge’s assessment of causation in a similar case:

[29]      I do not read the trial judge in this case… as having found that this was one of those exceptional cases in which the “but for” test is to be “relaxed” by recourse to a “material contribution to risk” test. Rather, the trial judge was using “contribute to” in the traditional sense and in my respectful opinion, did not err in doing so. Certainly on a “robust and pragmatic approach”, it was a reasonable conclusion that if Mr. Sulyma had activated his hazard lights, Mr. Leprieur would likely have been alerted to the presence of the Honda and would have had adequate, or more, reaction time in which to decelerate. Even if deceleration would not have totally avoided the impact but would only have reduced Ms. Hansen’s injuries, the “but for” test was still met.

[21]         I would not disturb the trial judge’s findings that it was negligent to turn off the car and leave only its running lights on in the middle of a busy bridge at night in a location where one would not expect vehicles to be stopped, nor would I disturb the finding that the negligence contributed to the accident.

[22]         The appellant argues that in apportioning liability the trial judge failed to recognize that the primary responsibility for avoiding rear end collisions rests with the driver approaching from the rear. In my view, it is clear from her reasons for judgment that the trial judge recognized that rule; she found the defendant negligent and liable, before going on, as she was required to do, to consider the plaintiff’s conduct. Having found the plaintiff contributorily negligent she was required to address the relative degrees of blameworthiness of the parties.

[23]         When she weighed the parties’ relative degrees of blameworthiness the trial judge was clearly of the view that the plaintiff’s conduct in failing to protect herself and other drivers after the first collision was more blameworthy than the defendant’s conduct. The trial judge found the defendant to have been momentarily inattentive in the face of an imminent, and relatively difficult to discern, peril. The plaintiff, on the other hand, attended to inspection of damage and attempted to exchange information with Mr. Masahiro before taking a simple step to protect herself and others. The trial judge properly treated the failure to illuminate flashers and move the vehicle collectively as “the central allegation” made against the plaintiff. ln my view, this central complaint, that the plaintiff failed to take any step to reduce the risk to drivers approaching what the trial judge found to be an unexpected hazard, remains, even if the plaintiff’s failure to move her vehicle is not blameworthy.

$140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases. 53 Comments on $140,000 Non-Pecuniary Assessment For Predominantly Psychological Chronic Pain Disorder

Adding to this site’s archived cases addressing damages for psychological injuries, reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for a predominantly psychological chronic pain disorder.
In today’s case (Khosa v. Kalamatimaleki) the Plaintiff was involved in a 2009 collision caused by the Defendant.  The Plaintiff suffered relatively mild objective physical injuries but went on to develop a largely disabling chronic pain disorder with a significant psychological component.  In assessing non-pecuniary damages at $140,000 Mr. Justice Saunders provided the following reasons:
[100]     In view of the testimony of Ms. Khosa and her collateral witnesses, and the medical evidence as I whole, I find on a balance of probabilities that she has been and continues to be both physically and psychologically disabled from her previous employment as an LPN, and from housework…
[103]     As noted above, Dr. Gandhi has opined that Ms. Khosa “likely developed a pain disorder associated with both physical and psychological factors”. I agree. The current physical disability, I find, undoubtedly has a very significant psychological component…
[105]     Given the persistence of the physical symptoms in the absence of any significant organic objective signs I find it likely that the psychological factors are the predominant cause…

[107]     I find that Ms. Khosa, on a balance of probabilities, is and has been impaired largely due to psychological injuries caused by the accident.

[108]     Ms. Khosa, I find, currently lacks the ability, at least psychologically, to undergo any form of retraining or upgrade of her skills, and, even if she could undertake the necessary training, currently lacks the physical and psychological wherewithal to discharge the job duties of a registered nurse. The plaintiff submits that:

The constellation of issues she has around tasks requiring management of stress, memory, and concentration, render her an unlikely candidate for completion of nursing school, let alone meeting the job requirements for nursing set out by her employer – foremost among those is the ability to safely administer medication and perform feeding procedures on her young patients.

[109]     I agree.

[110]     It is also apparent that Ms. Khosa’s injuries have had a profound impact on her self-image and her relationships with her husband and children.

[111]     These injuries, subjective though they may be, are real, were clearly caused by the physical and psychological trauma of the accident, and are compensable…

[121]     Based on the opinions of Dr. Koch and Dr. Gandhi, and on Dr. Estrin’s observations as to her positive responses to the limited CBT and neurofeedback therapy she has had, I find that Ms. Khosa’s current condition is such that there is considerable uncertainty as to her prognosis. I am not satisfied that her condition is such that marked improvement is improbable. As the plaintiff has not met the onus of proving this, I find there to be a probability of her responding favourably to psychological treatment. I find the outcomes that could follow from such favourable response range, in ascending probability, from only having her emotional well-being and her relationships with her family restored, to becoming more physically active, to being able to return to work as an LPN and possibly renew her planned pursuit of a career as an RN. I also find, however, that even within the best of these potential outcomes, Ms. Khosa may remain at least somewhat fragile and possibly susceptible to further episodes of anxiety and depression. I also recognize the possibility that the treatment period may be prolonged.

[122]     Given the inherent uncertainty in her condition, I also find that there is a relatively small, but still significant possibility of Ms. Khosa’s psychological condition being resistant to further treatment, resulting in no meaningful improvement. There is a very small possibility of her condition remaining so persistent and so debilitating that she would end up removing herself from the workforce entirely…

[130]     Bearing in mind both the probability of eventual recovery and the possibility of persistent symptoms into the future, and having regard to the non-exhaustive list of factors outlined in Stapley v. Hejslet, 2006 BCCA 34, I assess her non-pecuniary damages at $140,000.

Watch Out for the Moose, Eh! Failure To Warn Leads to Liability

Written by admin on . Posted in ICBC Liability (fault) Cases.

Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, addressing the duties of a motorist after colliding with an animal.
In today’s case (Ziemver v. Wheeler) a motorist struck a moose on the Alaska Highway.  It was “fully dark” at the time.  The moose lay dead or wounded when a subsequent motorist travelling in the same direction struck the animal, lost control and collided with an oncoming vehicle.
Multiple lawsuits were commenced.  The Court found that, given visibility issues, none of the motorists were responsible for striking the moose.  However, the first motorist was found liable for the subsequent collisions for failing to warn other motorists about the injured or dead moose in the roadway.  In reaching this conclusion Madam Justice Watchuk provided the following reasons:
[154]     A driver who has collided with wildlife must take reasonable steps to preclude the possibility of another vehicle colliding with that wildlife.  The actions which will constitute reasonable steps will vary depending on the circumstances.  The time available to the driver who has collided with the wildlife is an important factor to consider in assessing reasonableness. ..
[180]     Warning other motorists of the hazard that he had good reason to believe was lying on the road was a duty.  The duty arose at the time that he hit the moose.  Not utilising the available 9 minutes to fulfill that duty was a breach of his duty.  That breach caused the collisions between Mr. Walter and the moose and the Walter-Ziemer vehicles. ..

[187]     Mr. Wheeler failed to take any reasonable or entirely possible steps over the period of approximately 9 minutes before the third collision.  He did not return to the scene until a minimum of 21 minutes had passed.  I find that in these circumstances, his failure to take any steps to warn other motorists of the hazard posed by the moose carcass fell below the standard of care.

[188]     I further find that but for Mr. Wheeler’s failure to warn other motorists, the Walter-Ziemer collision would not have occurred or would have been likely to result in significantly decreased injury. 

[189]     This is not a case like Fajardo, in which the collision would have occurred even if the defendant driver had taken reasonable steps to warn other motorists (at para. 40).  Unlike in Fajardo, the hazard in this case did not take up the entire highway lane.  Further, because the weather was clear and Mr. Walter and Mr. Ziemer could see each other approaching, it is unlikely that they would have collided if they had taken evasive action to avoid the moose, which also distinguishes this collision from the accident in Fajardo. 

[190]     Most importantly, I find that both Mr. Ziemer and Mr. Walter would have been likely to avoid or lessen the impact of the collision if they had been warned that there was an approaching hazard.  I accept Mr. Walter’s evidence that he would have slowed if he had seen flashing lights which he would have understood as a warning.  I also find that Mr. Ziemer was an attentive driver and that he would have been likely to respond to a warning signal from Mr. Wheeler.  Both of these findings are supported by the persuasive expert evidence of Dr. Droll which indicated the ways in reasonable drivers could be assisted by roadside warnings of an upcoming hazard. 

[191]     In conclusion, I find that Mr. Wheeler breached his duty to warn other motorists of the hazard posed by the moose carcass, and that this caused the Walter-Ziemer collision. 

BC Ethics Committee Clarifies Duties for Law Firms That Lend Clients Money

Written by admin on . Posted in Uncategorized.

When advancing a personal injury lawsuit it is common for BC lawfirms to fund the lawsuit related expenses on behalf of clients (disbursements such as court filing fees, the cost associated with ordering medical records and expert reports).  Today the BC Law Society’s Ethics Committee provided an opinion that this practice is acceptable with certain conditions, however, if a lawfirm funds expenses beyond disbursements (ie clients medical costs, client out of pocket expenses etc) they must do so on an interest free basis unless they send the clients for independent legal advice first.  Below the full Ethics Opinion  can be found on page 12 of this link .
For Disbursement funding with interest charges to be Ethical the lawyer must
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge
If the funds advanced are for anything other than disbursements and interest is charged the requirements are greater and are as follows:
1. disclose the charge in writing in a timely fashion
2. ensure the charge is fair and reasonable
3. ensure the client consents to the charge after receiving independent legal advice
4. be in compliance with the BC Code rule 3.4-26.1, which prevents a lawyer from advancing funds to a client if there is a substantial risk that the lawyer’s loyalty to or representation of the client would be materially and adversely affected by te lawyer’s relationship with the client or interests in the client or the subject matter of the legal services.
 

Objections on Expert Qualifications Must Be Raised Under Timelines of Rule 11-6(10)

Written by admin on . Posted in BCSC Civil Rule 11.

Interesting reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing the scope and timing of objections required under Rule 11-6(10).
In today’s case (Pausch v. Vancouver Coastal Health Authority) the Plaintiff tendered the report of an expert discussing the standard of care of MRI technologists.  The Defendant failed to raise an objection of the expert’s qualifications under the timelines set out in Rule 11-6(10).  The Defendant argued that this rule was “limited to objections on the contents of the report” and did not apply to expert qualifications.  Madam Justice Sharma disagreed and found the rule did apply to qualification objections.  In reaching this conclusion the Court provided the following reasons:

[13]         Turning to the question of whether Rule 11-6(10) and (11) applies to objections of qualifications, I conclude that it does.

[14]         In my view, no difference can be drawn between an objection to the admissibility of the report, and an objection to an expert’s qualification with regard to Rule 11-6(10). In order to be admissible, any opinion evidence must come from a properly qualified expert. Qualification is a prerequisite to admissibility.

[15]         The wording of Rule 11-6(10) and (11) is mandatory. In my view, the phrase “objection to the admissibility of the expert’s evidence” necessarily includes objections based on inadequate qualifications of the expert. Indeed, the expert’s qualifications are required to form part of his or her report:  Rule 11-6(1)(a) and (b). I find therefore, that the defendant here ought to have given notice of the objections to the expert’s qualifications.

The Court went on to find that, despite the lack of a proper objection, the Court retains “an overriding discretion to admit opinion evidence when the rules have not been followed, or refuse to admit it when there has been compliance.” and that “It is the duty of the trial judge to ensure evidence admitted onto the record is both relevant and admissible but the plaintiff has the burden of establishing that Mr. Myszkowski is qualified as an expert.” whether or not a timely objection was raised.

Double Costs Rejected In Face of Plaintiff Credibility Concerns

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9. 56 Comments on Double Costs Rejected In Face of Plaintiff Credibility Concerns

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, rejecting a request for double costs following a trial where a Plaintiff beat her formal settlement offer by a slim margin.
In today’s case (Griffith v. Larsen) the Plaintiff suffered an injury in a collision.  Prior to trial the plaintiff provided  a formal settlement offer of $85,000 which was rejected.  At trial she was awarded $85,159.  The Plaintiff asked for double costs but Mr. Justice Affleck refused to award these finding it would not be appropriate in the face of credibility concerns and further with the Defendant enjoying some success at trial on one of the most contentious issues.  In rejecting the request for double costs the Court provided the following reasons:

[5]             I have considered two factors which have influenced my decision against awarding double costs. The first is my findings of credibility which were not favourable to the plaintiff. While I concluded the plaintiff had suffered soft tissue injuries of some duration which were deserving of an award of damages, I also concluded that she had not given her evidence with candour. An award of double costs is meant in part to penalize a party for failing to accept a reasonable offer. On the other hand a party who has not been candid with the court at least in some instances ought not to be rewarded with double costs even if her damage award exceeds the offer. This is one of those instances.

[6]             The second factor I have considered is the defendants’ relative success on the most contentious issue at the trial. The plaintiff advanced a claim far exceeding the award which was largely predicated on the proposition she would need surgery to overcome a disabling thoracic outlet syndrome. I did not accept the plaintiff’s evidence on that issue. The defendants largely succeeded in persuading me that the thoracic outlet syndrome, if the plaintiff actually experienced it, had little effect on her physical condition. That is a further reason for concluding it is not appropriate to penalize the defendants with an award of double costs.

[7]             In Mudry v. Minhas, 2010 BCSC 1110, Kelleher J. discussed apportionment of an award of costs for relative success on an issue under the then Rule 57(15). While the court concluded the plaintiff had not met the test for apportionment, the plaintiff’s success in that case on the issue of fault (although no damage was found and the action dismissed) was a relevant factor under Rule 37B(6)(d), now Rule 9-1(5)(b), on considering if the defendant was entitled to double costs when there had been a defence offer, which in Mudry obviously exceeded the damage award which was nil..

[8]             I acknowledge there is some merit to the plaintiff’s submission that, notwithstanding the absence of success on the issue of thoracic outlet syndrome, the plaintiff’s offer took into account the risk of failure on that issue. Nevertheless, in the circumstances of this action I am unwilling to penalize the defendants in costs when they largely succeeded on that question. The usual rule will prevail that party and party costs on Scale B follow the event.

Failure To List Documents Leads To Expert Report Exclusion

Written by admin on . Posted in BCSC Civil Rule 11. 50 Comments on Failure To List Documents Leads To Expert Report Exclusion

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, excluding an expert report for failing to disclose a list of documents reviewed.
In today’s case (Lawrence v. Parr) the Plaintiff was involved in a 2010 collision and sued for damages.  The Plaintiff alleged that the collision caused some hearing loss.  Prior to trial the Defendant served a report from an otolaryngologist which opined that the hearing loss was not from the collision.  The report was criticized for a number of reasons including being served beyond the timelines required under the Rules of Court.  The report as ultimately excluded from evidence with Mr. Justice Tindale noting that the expert’s failure to list documents reviewed and relied on was a fatal error.  In excluding the report the Court provided the following reasons:

[126]     Rule 11-6 (1) states a number of mandatory requirements of an expert report. Dr. David’s report did not contain the certification required under Rule 11-2 (2) though that was remedied at a later date. It does not contain the instructions provided to Dr. David. His report is not clear as to the nature of the opinion being sought and the issues in the proceeding to which the opinion relates. But most importantly it does contain a description of the factual assumptions on which his opinion is based. There is not a comprehensive list of the documents that he relied on. Where he does discuss a document that he relied on he either makes vague, inaccurate or misleading references to that document.

[127]     I am mindful of Rule 11-7 (6) however. The admission of this report will cause prejudice to the plaintiff because despite a very lengthy cross-examination it is not clear what the purpose of Dr. David’s report was and what his factual assumptions were.

[128]     In my view, for all the above noted reasons Dr. David’s report and evidence at the video deposition are inadmissible.

Deep Sea Terminal Negligent After Failing To Warn User Of Automated Gangway

Written by admin on . Posted in Occupier's liability claims, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, finding Prince Rupert Grain Ltd. (PRG), who operated a deep sea terminal, negligent for failing to meaningfully warn the Plaintiff about an automated gangway.
In the recent case (Ranjabar v. Islamic Republic of Iran Shipping Lines) the Plaintiff was a cook on a foreign commercial vessel.  It docked at the Defendants deep sea terminal.  After a brief time at shore, as the Plaintiff was attempting to board the vessel, the automated gangway lifted and the Plaintiff fell onto the ship below fracturing his femur.
The Defendant PRG was found liable with the court finding the gangway was “both unusual and dangerous“.  The court noted that the English language warning signs were insufficient notice of this danger in the circumstances where occupants of foreign vessels were expected to encounter it.
At paragraphs 81-101 the Court sets out a lengthy list of applicable legal principles in occupiers liability cases concerning the use of a gangway.  In finding PRG liable Madam Justice Dillon provided the following reasons:
[104]     Did the gangway pose an unusual danger? Yes, it did. The automatic gangway was both unusual and dangerous. It was unusual because none of the seamen who testified, including Ranjbar, Salmannia and Malayeri, had ever seen such a gangway in all of their combined years at sea around the world. Usually, a ship (and certainly the Iran Mazandaran) used its own gangway to access a terminal. Usually, it was continuously monitored and operated manually. Based upon this evidence, it is concluded that the average crew member would not have expected the gangway to rise automatically, especially with someone on it. Salmannia thought that “automatic” meant that the ladder remained at all times on the ship deck. The alarm cycle and sequence before lifting of the gangway was both unusual and dangerous if not known. None of PRG’s personnel who testified could interpret the record of the alarm sequence exactly and could not explain why or when the sequence was altered from the original operations manual. It was not obviously visually apparent to either Ranjbar or to Salmannia that the gangway automatically lifted…
[107]     PRG acknowledged this danger by placing the signs and using the horn to warn of danger from movement of the automatic gangway if someone was on it. Whether they were adequate is another question. The assistant maintenance superintendent for the terminal admitted that the gangway was dangerous, especially if one was on the ladder when it lifted. He had never attempted to experience the ladder when the gangway lifted because of the danger…
[113]     Did the failure of PRG to adequately warn of the danger cause Ranjbar to fall from the ladder? The answer is yes. If Ranjbar had known that the gangway would lift automatically, raising the stepladder off of the deck of the ship, he would not have waited while he threw down the backpack to Heidar and then proceed down the ladder. Heidar did not change his conduct as a result of the signs or horn, indicating that he, too, did not appreciate the danger. When the gangway started to lift, Ranjbar did not know what was happening and did not know what to do. Even if he had seen them, the warning signs were inadequate to transmit the danger to him. Ranjbar was aware of dangers generally at the terminal and took care, but relied upon others to inform him about specific dangers. He was a new visitor to this terminal and was given a security pass, but was not told anything about this gangway. The nature of the gangway as automatically lifting regardless that someone was on it was not obvious. It cannot be said in all of the circumstances that the plaintiff’s misunderstanding of the signs and horn was the cause of his injury…
[117]     In conclusion, following careful consideration of all of the facts and the guidance of the law, PRG is 100% liable for the injuries caused to the plaintiff.

"Short Fuse" Formal Settlement Offer Triggers Double Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9, Uncategorized. 49 Comments on "Short Fuse" Formal Settlement Offer Triggers Double Costs

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, addressing whether a formal settlement offer open for only 3 days could trigger costs consequences.
In today’s case (Henry v. Bennett) the Plaintiff was involved in a 2008 collision and sued for damages.  The claim was ultimately dismissed with the Plaintiff being at fault for the crash.  Prior to the trial the Defendant provided a formal offer of $30,000 which was only open for acceptance for three days.
The Plaintiff argued that the offer should not attract double costs in part due to its short window.  Madam Justice Ballance disagreed finding given the significant liability risks at trial it was a reasonable offer.  In addressing its short lifespan not being a barrier the Court provided the following reasons:

[41]         I would ordinarily regard a three-day fuse attached to an offer that was delivered close to the eve of trial, where it would be expected that the party would be engrossed in the demands of trial preparation, as posing an unreasonable time constraint within which to give it meaningful evaluation.  The difficulty facing Mr. Henry, however, is that due mainly to his own damaging discovery evidence, he ought reasonably to have anticipated that he faced significant exposure of not only faring poorly on the issue of liability, but losing his case altogether.  Knowing, as he did, his harmful evidence, Mr. Henry should have appreciated the deep weakness of his claim and the risk of significant apportionment against him or the outright dismissal of his suit and his exposure for an adverse costs award.  All things considered, the 2011 Offer was one that ought reasonably to have been accepted by Mr. Henry.

[42]         With respect to other the pertinent factors, in dismissing Mr. Henry’s case, the Court placed heavy emphasis on his discovery evidence concerning liability for the accident.  Relatively little is known about Mr. Henry’s specific financial circumstances.  Based on the evidence at trial, it is reasonable to infer that his financial situation is modest.  However, that, of itself or in combination with any other factor, is not reason enough in this case to refuse the defendant an award of double costs.

[43]         The defendant is entitled to costs of this proceeding at Scale B up to and including March 8, 2011, and double costs thereafter.

Court Criticizes Doctor As Being "An Advocate For ICBC"

Written by admin on . Posted in Uncategorized. 51 Comments on Court Criticizes Doctor As Being "An Advocate For ICBC"

Adding to this site’s archives of judicial criticism of ‘advocate’ expert witnesses, reasons for judgement were released today  by the BC Supreme Court, Vancouver Registry rejecting the evidence of a defence expert on the basis of advocacy.
In today’s case (Davidge v. Fairholm) the Plaintiff was involved in a 2009 rear end collision.  Fault was admitted.  The Plaintiff suffered a chronic back injury which interfered with both his vocational and recreational abilities.  ICBC had the Plaintiff assessed by an orthopaedic surgeon who largely discounted the crash as playing a role in the Plaintiff’s chronic symptoms.  In criticizing this evidence as ‘advocacy’ Madam Justice Griffin provided the following reasons:

[124]     ICBC called expert evidence from Dr. Olie Sovio, an orthopaedic surgeon, who at ICBC’s request conducted an independent medical examination of the plaintiff on June 27, 2013 and produced a report dated July 2, 2013, admitted at trial.  Dr. Sovio’s opinion seemed to accept that the plaintiff had low back pain and neck stiffness when he saw him.  He characterized the symptoms as subjective but did not offer a reason to believe they were not real.  He recommended that the plaintiff undertake a regular activity, or exercise, program.

[125]     Dr. Sovio’s opinion did not address what caused the plaintiff’s low back pain.

[126]     However, in cross-examination Dr. Sovio made an effort to state his opinion that because there was no abnormality in the plaintiff’s low back for seven months, it did not make sense to attribute that pain to the car accident.  This opinion was offered even though it was not responsive to the question being asked, and was not in his report.  I got the sense from his eagerness to state this that he was being an advocate for ICBC rather than a neutral expert.

[127]     Dr. Sovio’s off-hand opinion in relation to causation was not well explained.  From the context of his evidence, it appeared to be based on his view that the patient had new onset of low back pain that was not there before, seven months after the accident (i.e. it was new when first noted in Dr. Rebeyka’s April 9, 2010 clinical record).  This was despite the plaintiff telling Dr. Sovio that he had low back pain almost immediately after the accident. In other words, Dr. Sovio chose to not believe the plaintiff because Dr. Sovio did not see low back pain documented in the clinical records until later. 

[128]     Just as with the other experts, it is up to this Court to determine whether or not the plaintiff can be believed when he says he had low back problems after the accident that grew in intensity over time. 

[129]     Dr. Sovio did not provide any explanation as to what was the cause of the plaintiff’s low back pain.  According to his evidence, the degenerative changes in the plaintiff’s back should not have prevented him from returning to work in the oil fields.  If that is so, his opinion does not support any conclusion that the degenerative changes limited the plaintiff’s ability to do heavy work and led to the low back pain after the return to work.    

[130]     In the last paragraph of p. 6 of Dr. Sovio’s report, he acknowledged that he was unclear on why the plaintiff took time off work from the oil fields and ultimately attended retraining even though after the WHP he was considered fit to return to work.  Dr. Sovio concluded that the patient chose to retrain rather than return to his drilling occupation, “but this does not seem to be on a physical basis, at least, judging from the medical records”.  In stating this, Dr. Sovio either ignored the plaintiff’s history or did not ask him questions about his experiences after returning to work.

[131]     Dr. Sovio’s report leads me to conclude that he did not understand the plaintiff’s medical history leading up to his attendance at BCIT, including the fact that the plaintiff found work in the oilfields to be too painful and thus too physically difficult after the accident.  It seems somewhat careless for Dr. Sovio to opine that retraining was simply a personal choice and not due to the patient experiencing physical limitations at his work.  

[132]     Dr. Sovio performs many assessments for the Workers’ Compensation Board, and he made it clear in his evidence that he thinks many workers injured at work simply would prefer not to return to work even though they do not have a good reason for not returning.  He offered this as his explanation for discounting the opinion of the plaintiff’s general physician. Unfortunately I felt that Dr. Sovio was unduly cynical and had a bias in this regard and so viewed the plaintiff’s own reports of back pain as not worthy of any weight, which is not an objective approach.

[133]     Dr. Sovio’s approach as to the plaintiff’s ability to work also seemed very superficial.  He did not apparently know the exact nature of the physical tasks the plaintiff must perform in his work and other physical stresses of his job.  When questioned what the job involved, he rather arrogantly said, “I think I know what it’s all about”, when clearly he had little idea and had not asked the plaintiff sufficient questions to gain an understanding. 

[134]     In short, I did not find Dr. Sovio’s evidence to be helpful on the issues of causation or the plaintiff’s ability to work.