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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.  

Passenger 35% To Blame For Riding With Impaired Driver

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing contributory negligence for a passenger who rides with an impaired motorist involved in a collision.
In today’s case (Telford v. Hogan) the Plaintiff was a passenger in a vehicle operated by the Defendant.  Both were drinking throughout the day.  As the vehicle was travelling at excessive speed on a highway the driver lost control resulting in a serious single vehicle collision.  The Plaintiff apparently interfered somehow with the steering wheel moments before the loss of control and the Court found the driver 75% at fault with the passenger shouldering 25% of the blame for this interference.  In addition to this the Court apportioned the Plaintiff’s contributory negligence at 35% for riding with an impaired motorist.  In reaching this conclusion Madam Justice Fitzpatrick provided the following reasons:

[103]     Despite the efforts of Ms. Telford’s counsel to distinguish the above cases, all of them bear some resemblance to this case in that the passenger and the driver embarked on a drinking exercise or “hazardous enterprise” where both knew or should have known that the intoxication of the driver was inevitable. I would repeat that Ms. Telford was well aware that Ms. Hogan was drinking over the course of the day and she had particular knowledge of the quantity of what Ms. Hogan consumed as the majority of it came from her own drink container. Although she may not have been aware of exactly what Ms. Hogan consumed from Ms. Ettinger’s cup, she would also have been aware that Ms. Ettinger’s beverage was alcoholic and that Ms. Hogan was sharing that too.

[104]     It does not follow that since Ms. Hogan was not exhibiting overt signs of impairment, one need not consider Ms. Telford’s lack of judgment in both offering her drink to Ms. Hogan and then getting in the vehicle being driven by Ms. Hogan for the trip home. To the extent that later in the day, Ms. Telford drank alcohol to the point of being severely intoxicated herself confirms that she failed to take reasonable steps to ensure her ongoing ability to assess her safety over the course of the trip home.

[105]     The cases cited by ICBC support the suggested range of apportionment of 30-35% for such a passenger who voluntarily rides with a drunk driver. The higher end of this range is amply supported, particularly by the fact that Ms. Telford herself provided most of the alcohol consumed by Ms. Hogan that day.

[106]     I assess Ms. Telford’s contributory negligence to be 35%.

The Revival Of ICBC TTD Benefits

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits. 66 Comments on The Revival Of ICBC TTD Benefits

Important reasons for judgement were released today by the BC Supreme Court, Nanaimo Registry, addressing the entitlement of a claimant to ‘revive‘ ICBC disability benefits after an attempted return to work.
In today’s case (Symons v. ICBC) the Plaintiff was involved in a serious collision in 2008.  She was rendered initially disabled and ICBC paid her TTD benefits until her ‘creditably stoic and determined‘ return tow work later that year.  The Plaintiff’s return was short lived as progressive symptoms eventually led to a series of surgeries and her symptoms continued to disable her at the time of trial.
The Plaintiff applied for disability benefits under s. 86 of the Insurance (Vehicle) Regulation but ICBC denied these arguing that unless TTD’s were being actively paid at the 104 week mark (a period when this plaintiff was back at work) that the legislation does not allow the ongoing payment of disability benefits.  Mr. Justice Baird rejected this argument and set out the following reasons clarifying when an insured is entitled to revive TTD benefits with ICBC:

[35]         Following Brewer, Halbauer, and Cai, insured persons currently have a right to revive their TTDs (assuming all the other regulatory requirements are met) in three situations:

1.     Entitlement and revival under s. 80: the insured person receives benefits under s. 80, returns to work, and again becomes totally disabled from employment within the 104-week period.

2.     Entitlement and revival under s. 86: the insured person receives 104 weeks of benefits under s. 80, transitions to benefits under s. 86, then returns to work for a period before again returning to total disability.

3.     Entitlement under s. 80 and revival under s. 86 (intervening alternate insurance benefits): the insured person receives TTDs under s. 80, then receives private insurance benefits for more than 104 weeks, before reviving Part 7 benefits under s. 86.

…

[41]         Part 7 is also designed to promote the injured person’s rehabilitation, defined in s. 78 as “the restoration, in the shortest practical time, of an injured person to the highest level of gainful employment or self-sufficiency that … is … reasonably achievable”. To this end, Part 7 also includes rehabilitation benefits under s. 88, including the provision of funds for various one-time expenses that are likely to promote the person’s recovery (for vocational training, for example, or alterations to the insured’s residence to improve accessibility), and funds for medical treatments and rehabilitative therapies.

[42]         In other words, Part 7 (at least so far as it is concerned with benefits following injury, rather than death benefits) has two related objects: to compensate an insured person for a portion of the financial loss accrued from temporary total disability caused by a motor vehicle accident; and, where possible, to do so in a manner that brings about the end of the total disability by returning the injured person to employment or self-sufficiency. (For some discussion of these purposes, see Halbauer at para. 41.)…

[49]         I therefore conclude that an insured person is eligible to apply for the revival of TTDs under s. 86 so long as a) they have previously established eligibility and received TTDs under s. 80; b) they can demonstrate that they are totally disabled as defined in s. 80; and c) they can show that the total disability is due to injury sustained in the original accident.

$60,000 Non-Pecuniary Assessment for "Moderate To Severe" Soft Tissue Injuries

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for soft tissue injuries from a motor vehicle collision.
In today’s case (Farbatuk v. Lagrimas) the Plaintiff was rear-ended in a 2011 collision.  The Defendant admitted fault.  The Plaintiff sustained moderate to severe soft tissue injuries to his neck and back.  The Plaintiff’s physician gave evidence that the prognosis for recovery was extremely guarded although the Court rejected this finding that any lingering symptoms did not “debilitate or impair” the Plaintiff in any meaningful way.  In assessing non-pecuniary damages at $60,000 Madam Justice Kloegman provided the following reasons:

[22]         It appears from the medical evidence that all three expert witnesses agreed that the plaintiff suffered a moderate to severe whiplash to his neck and back in the accident. It also appears that the medical experts agree there is evidence of a pre-existing degenerative condition in the plaintiff’s back and neck, whether D.I.S.H. or something else.

[23]         Dr. Miki described the plaintiff’s prognosis as “extremely guarded”, particularly in relation to the work the plaintiff has done for the previous 25 years. Dr. Richardson’s prognosis for the plaintiff’s neck and back was moderate, with no increasing risk of developing osteoarthritis. Dr. Werry stated in his report that the plaintiff will probably continue indefinitely to experience variable neck and low back pain and stiffness, but that he probably has not reached maximum medical improvement.

[24]         As stated earlier, Dr. Miki’s evidence was given in an advocational manner and he relied heavily on the plaintiff’s self-reporting. His prognosis of “extremely guarded” was not consistent with some of his clinical notes that had been omitted from his report. These showed steady and continuous improvement in the plaintiff’s position. His prognosis was also not consistent with the evidence of Louise Craig, functional capacity evaluator, who opined that the plaintiff’s main limitation is in his range of motion in his neck. She reported that the plaintiff felt an increase in symptoms from sustained sitting and stooping, but that he showed a tolerance for exertion of low to upper range of heavy physical strength, very good core strength and aerobic fitness, no limitation in standing, walking, crawling, kneeling, crouching, managing stairs, balancing, reaching, gripping and most importantly; he was able to carry a medium load of 50 lbs on a frequent basis which placed his ability to work in the Heavy category of occupations.

[25]         In my view, the plaintiff’s prognosis is more optimistic than either Dr. Miki or he would admit. Although 2½ years have passed since the accident and the plaintiff still complains about neck pain, back pain and limited range of motion, I am not satisfied, on a balance of probabilities, that these subjective complaints are sufficiently supported by any objective evidence of continuing injury. Simply put, he has not established that his ongoing complaints are serious enough to debilitate or impair him in any way…’

[46]         I find that the plaintiff’s situation is closer to those of the plaintiffs in the above cases cited by defence. In my view, an award of $60,000 is fair compensation for the plaintiff’s non-pecuniary losses.

Court of Appeal Discusses BC Apology Act

Written by admin on . Posted in Uncategorized. 47 Comments on Court of Appeal Discusses BC Apology Act

In the first case that I’m aware from the BC Court of Appeal discussing BC’s Apology Act, reasons for judgement were released today addressing this statute in the face of post collision conduct.
In today’s case (Vance v. Cartwright) the Plaintiff was found fully at fault following motorcycle/vehicle collision.  The Plaintiff appealed arguing the trial judge erred in allowing an apology into evidence.  The BC Court of Appeal upheld the trial judgement finding the trial judge did not place any weight on the Plaintiff’s post crash apology in the reasons underlying the claims dismissal.  In commenting on BC’s Apology Act the Court of Appeal provided the following reasons:

[5]           Section 1 of the Act defines “apology” as follows:

“apology” means an expression of sympathy or regret, a statement that one is sorry or any other words or actions indicating contrition or commiseration, whether or not the words or actions admit or imply an admission of fault in connection with the matter to which the words or actions relate.

[6]           Section 2 provides:

2(1)      An apology made by or on behalf of a person in connection with any matter

(a)        does not constitute an express or implied admission of fault or liability by the person in connection with that matter,

…

(d)        must not be taken into account in any determination of fault or liability in connection with that matter.

(2)        Despite any other enactment, evidence of an apology made by or on behalf of a person in connection with any matter is not admissible in any court as evidence of the fault or liability of the person in connection with that matter.

[7]           It is contended that Mr. Vance’s statement that he was sorry and that the accident was all his fault, as well as his later payment of $1,000, constituted an apology or apologies as defined by the Act which the judge took into account in determining fault.

[8]           Accepting for present purposes that what Mr. Vance said and did amounts to an apology as defined, I do not consider the judge can be said to have taken it into account in the sense of treating it as an admission or acknowledgement of fault. His clear purpose for referring to what was said was only to explain why no photograph of the position of Ms. Cartwright’s vehicle had been taken to establish where it had been stopped when Mr. Vance crashed into its left rear fender.

[9]           Nowhere in his reasons does the judge even suggest he was relying on what Mr. Vance said or did after the accident as the basis of finding him at fault. His reasoning is all based on the evidence and his findings of what occurred before the collision – speed, distance, line of sight, and the conduct of Mr. Vance and Ms. Cartwright.

[10]        Significance is attached to the judge having said Mr. Vance was fearful and not thinking clearly following the accident and that his behavior was nonetheless remarkable, not consistent with someone whose life had been put in jeopardy by the actions of another. But that appears to me to be little more than a comment on his confused state of mind following the accident. If anything, the judge appears to have been discounting the significance of what Mr. Vance said and did. In any event, it is not indicative of the judge having wrongfully relied on, or taken into account, anything that occurred after the accident to find Mr. Vance at fault: quite the contrary.

[11]        I conclude the judge has not been shown to have found Mr. Vance to be solely at fault for the accident in any way that would offend the provisions of the Act.

Uber RideSharing Can Lead To Uber Insurance Problems

Written by admin on . Posted in Uncategorized. 53 Comments on Uber RideSharing Can Lead To Uber Insurance Problems

UBER Logo
Uber, a ride for hire app, is currently facing a legal showdown in Vancouver.  For those unfamiliar with Uber, the company’s app connects passengers with drivers who, for a fee, take them to their destination.  Uber takes a slice of the action.  The Uber business model is proving profitable for the company but disruptive for the taxi industry.  A debate revolves around the need for regulation vs reducing consumer prices caused by the artificial monopoly provided to taxi companies.
Without weighing in on the politics of this debate one real world problem exists with Uber given BC’s current legal landscape.  The threat of breach of insurance for drivers in the program.
If an Uber driver is involved in an at fault crash while carrying a paying passenger they may be in breach of their insurance coverage with ICBC.
Section 75 of BC’s Insurance (Vehicle) Act invalidates ICBC coverage where “the insured violates a term or condition” in relation to their plan of insurance.
Section 55 of the Regulations set out the applicable terms and conditions and among these are the following:

(a) the use declared in the application for insurance for the vehicle,

(b) a statement relating to the time during which, and the territories in which, the vehicle may be operated, and

(c) a statement relating to the kind of goods or number of passengers that may be carried in or on the vehicle.

So, let’s say a driver with ICBC insurance coverage for pleasure use of their vehicle decides to make a few extra bucks by participating in the Uber program.  If he or she is involved in an at fault collision while ‘on the clock’ ICBC could likely use the above legal framework to declare them in breach of their coverage.  This means that ICBC would come after the driver for repayment of all insurance claims made following a crash.

Uber’s disruptive technology is welcomed by many and opposed by others.  Whatever the ultimate political outcome, it is clear that if a driver does not have properly declared insurance coverage they can face steep financial fallout if ever involved in a collision.   Any potential gaps in coverage is a problem which must be solved for a company like Uber to successfully operate in BC.

Jury Verdict Deemed Perverse For Failing To Award Non-Pecuniary Damages

Written by admin on . Posted in BCSC Civil Rule 12, Jury Trials.

Reasons for judgment were released today by the BC Supreme Court, New Westminster Registry, ordering a retrial following a ‘perverse’ jury finding.
In today’s case (Kalsi v. Gill) the Plaintiff was injured in a vehicle collision.  A jury found both parties equally to blame and after factoring the liability split awarded the Plaintiff $10,000 for past wage loss and special damages.  The Jury awarded nothing for non-pecuniary loss.  Mr. Justice Weatherill ordered a new trial and in doing so provided the following reasons:

[23]         While the court should strive to give effect to a jury’s verdict, it cannot do so where the jury’s verdict is internally in conflict.

[24]         In this case, it is apparent that the jury did not accept the plaintiff’s evidence as to her losses. Put bluntly, the jury did not believe her. It is obvious, however, that the jury found that the plaintiff was injured, at least to some degree, by the award for special damages of $8,000 and past loss of earnings of $12,000.

[25]         While the jury is the judge of issues such as credibility, it was not open to them, after making the findings as they did regarding special damages and past loss of wages, to fail to make any award for non-pecuniary damages (Balla). Such a result was inconsistent.

[26]         The basis of any tort action rests on a finding that the plaintiff suffered an injury. It is illogical to conclude that a plaintiff was injured and suffered past wage loss and special damages but did not sustain and pain, suffering, or loss of enjoyment, no matter how transient. (Balla, Stewart).

[27]         The issue, then, is whether this result necessitates a new trial (Rule 12-6(7)) or whether I can pronounce judgement on some of the claims and order a retrial on the balance (Rule 12-6(8)).

[28]         There is a clear difference in wording of the two rules that sheds some light on the issue. Rule 12-6(7) demands a retrial when either:

a)    a jury answers some but not all of the questions directed to it, or

b)    the jury’s answers are conflicting so that judgement cannot be pronounced on the findings.

[29]         Conversely, Rule 12-6(8) allows partial judgment when a jury’s answer entitles a party to judgement in respect of some but not all of the claims of relief. It does not contemplate partial judgment when the jury’s answer is conflicting.

[30]         Respecting the jury’s finding of liability between the parties for the collision, that question has been answered. There is nothing in the rest of the jury’s verdict that is inconsistent with it.

[31]         Respecting the jury’s finding on damages, an inconsistency exists. An award for special damages and past wage loss and no award for non-pecuniary damages have repeatedly been characterized in all the relevant case law as a “conflict” and an “inconsistent result”.

[32]         This conclusion is reinforced by Balla, Banks and Binnie v. Marsollier, 2001 BCCA 543. Re-trials were ordered in all three pursuant to Rule 41(2) (now Rule 12-6(7)). There was no mention of the potential application of Rule 41(3) (now Rule 12-6(8)).