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Mitigation of Damages – "The Law Does Not Encourage Indolence"

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, reducing a Plaintiff’s pain and suffering award by 20% for failure to take reasonable steps to mitigate damages.
In today’s case (Rasmussen v. Blower) the Plaintiff was involved in a 2008 rear end collision.  Fault was admitted.  The Plaintiff suffered “whiplash type injuries” with some symptoms persisting to the time of trial.  The Court found that the Plaintiff failed to follow reasonable treatments recommended to him.  In reducing his non-pecuniary damages by 20% as a result of this Mr. Justice Funt provided the following reasons:

[38]         The law does not encourage indolence.  An injured party has a duty to mitigate:  see Graham v. Rogers, 2001 BCCA 432, at para. 35.  In this type of case, the plaintiff must seek and follow the advice of his or her physician with the goal of overall improvement and recovery.

[39]         Regarding lack of mitigation, plaintiff’s counsel submits that the plaintiff did not follow the recommended treatment of physiotherapy and massage, stating that the two sessions that he did attend were painful, that he was constantly travelling, and that he could not afford the treatments.

[40]         The Court rejects the plaintiff’s reasons for failure to mitigate.  Realistically speaking, perseverance is often the key to allowing medical treatments a chance to work.  During the approximately three months for which the plaintiff claims past wage loss, he could have attended physiotherapy and massage sessions.  The Court is satisfied that he had sufficient funds or, as noted by defence counsel, he could have claimed Part 7 benefits (Insurance (Vehicle) Regulation, B.C. Reg. 447/83, Part 7).

[41]         The defendant did not argue that, if the plaintiff had followed the medical advice he received, the plaintiff’s injuries would have resolved within “6 months to a year or so”:  Price, supra.  The defendant stated that the plaintiff’s non-pecuniary award should be reduced by 10%-20% in order to take into account the plaintiff’s failure to mitigate.  The defendant has satisfied the two-pronged test in Chiu v. Chiu, 2002 BCCA 618, set forth by the late Mr. Justice Low, writing for our Court of Appeal:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss.  In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[42]         The Court will reduce the non-pecuniary award it would otherwise have ordered by 20%.  The plaintiff failed to mitigate by not following the reasonable treatments recommended to him.  He also consumed alcohol in quantity which, pragmatically viewed, probably reduced or nullified the effectiveness of the prescribed medications.

Speculation No Reason for Second Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams, Uncategorized. 61 Comments on Speculation No Reason for Second Defence Medical Exam

Reasons for judgement were released recently by the BC Supreme Court, Vancouver Registry, confirming that a second Court ordered defense medical exam is inappropriate solely in anticipation of an event which may not occur.
In the recent case (Litt v. Guo) the Plaintiff was involved in two collisions and sued for damages.  In the course of the lawsuit the Plaintiff consented to a defence medical exam with a physician that addressed the Plaintiff’s injuries.  As trial neared the Defense applied for a further exam with a new physician arguing that the initial report was dated and further that “the plaintiff might file a newer report” and the Defendant wished to respond to this anticipated development.  In noting that both arguments were insufficient for a Court ordered second defense medical exam Madam Justice Fenlon provided the following reasons:

[10]         The second ground raised by the defendants, and the ground that Mr. McHale referred to as the primary basis supporting the application for another IME by a different specialist, is that the most recent report of Dr. Bishop will be two years old at the date of trial in October 2014. The defendants fear that the plaintiff might file a newer report before the August 4 deadline for delivery of such reports, and the defendants say they would then be at a disadvantage because the plaintiffs will have a fresher report, a report based on a more recent assessment of the plaintiff.

[11]         The defendants submit that they would wish to put before the Court the best evidence, the evidence of an examination of the plaintiff at a time more recent than October 2012. There are, in my respectful view, two weaknesses with that submission. The first is that it anticipates what has not yet occurred.  If the plaintiff does submit a report prepared by one of her experts based on a recent examination of the plaintiff and if something new comes out of that report, then presumably Dr. Bishop could be invited to comment on it and the defendants would be in a position to file a rebuttal report. There is nothing in the record before me to suggest that he would not be able to comment on such a report or that there would be a need for further examination should he, in fact, be faced with such a report.

[12]         The second weakness is that passage of time alone is not a basis for ordering a second medical examination of a plaintiff. Dr. Bishop’s report is very clear in terms of his diagnosis, prognosis and his description of the pattern of symptoms Ms. Litt will experience into the future. He describes a likely aggravation of symptoms on activity, which it seems is exactly what is reflected in the medical reports which initially led to this application.

[13]         In short, despite Mr. McHale’s able submissions, I cannot find that a further examination is necessary to ensure reasonable equality of the parties in preparing for this trial.

Increased "Sexually Aberrant Behavior" Brain Injury Claim Leads to Police File Disclosure

Written by admin on . Posted in BCSC Civil Rule 7. 44 Comments on Increased "Sexually Aberrant Behavior" Brain Injury Claim Leads to Police File Disclosure

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing document relevancy issues in a disputed brain injury claim.
In today’s case (Mackinnon v. Rabeco Holdings (1989) Ltd.) the Plaintiff was involved in a 2010 vehicle collision.  He sued for damages alleging that “he sustained a brain injury…as a result of the accident which caused or contributed to an increase in the frequency and severity of his pre-accident sexually aberrant behaviour culminating ultimately in a criminal conviction“.
Prior to the collision “the plaintiff took clandestine photos of a woman. The incident was reported to police in Langley who investigated, but no charges were laid.”.  In a post collision incident, the Plaintiff plead guilty to “surreptitiously unlawfully observing or recording for a sexual purpose a person in circumstances that give rise to an expectation of privacy contrary to s.162(1)(c) of the Criminal Code”.
The Defendant sought production of police materials from these incidents arguing the documents were relevant given the allegations in the lawsuit.  Master Harper agreed and ordered production.  In doing so the Court provided the following reasons:
[17]         The plaintiff will attempt to prove at trial that the injuries sustained in the motor vehicle accident caused or contributed to the escalation of his sexual proclivities. That fact, if found by the trier of fact, is material. The defendants seek to obtain evidence as to the timeline of the escalation in the Plaintiff’s sexually aberrant behaviour and compare his behaviour pre- and post-accident…

[22]         Because the defendants are not seeking production of the videos and photographs themselves (sensibly, in my view because I would not have ordered their production), secondary documents which refer to the nature of the images and the dates on which they were made are a reasonable substitute for those original documents. I find that certain specific documents in the possession of the RCMP with respect to the 2009 incident should be produced. These are: the incident report; any statements made by the plaintiff to the RCMP and the investigating police officer’s notes, with identifying information of the victims to be redacted.

[23]         I find that certain specific documents in the possession of the RCMP with respect to the June 25, 2012 incident should be produced. These are: the Narrative Report to Crown Counsel; the notes of the investigating police officer or officers and any statements made by the plaintiff to the RCMP.

[24]         The video catalogue was referred to by Crown Counsel as being made by someone other than Crown Counsel. There is no evidence as to who that someone is. It is possible that the video catalogue was not made by the RCMP and is not in the possession of the RCMP. There is no evidence before me in this application that the video catalogue is in the possession of the RCMP and no evidence from which I can draw an inference that the video catalogue is probably in the possession of the RCMP. Therefore, I dismiss that part of the application.

[25]         As stated above, counsel for the Defendants is not seeking disclosure of the videos and photos themselves. Any identifying information of the victims will be redacted.

Expert Opinions and the Garbage In Garbage Out Principle

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Much like the computer science principle of Garbage In Garbage Out, if an expert opinion is based on facts a Court does not accept than the opinions will ultimately be of little value.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this principle.
In this week’s case (Amini v.Khania) the Plaintiff was involved in a 2009 collision that the Defendant was at fault for.    The Plaintiff suffered from chronic neck pain and headaches following the collision.   The Defendant arranged a defense medical exam with a physician who minimized the connection of the collision to the Plaintiff’s chronic symptoms noting the plaintiff had degenerative changes and that “he likely would have become symptomatic regardless of the accident“.
In rejecting this opinion the Court noted that the physicians assumed facts differed from those accepted by the Court and provided the following reasons:

[33]         I prefer the diagnosis of Drs. Beheshti, Javidan, and Jordan over the diagnosis of Dr. Dommisse in this regard.  I make a number of findings of fact that are contrary to the facts assumed by Dr. Dommisse.  First, I cannot find that Mr. Amini worked seven days a week after the accident for a year doing gardening, paving and fence making.  I find as a fact that he did not return to his landscaping work immediately and, when he did, it was in a reduced capacity due to the physical limitations caused by the accident.  Second, the opinion of Dr. Dommisse appears to be based on very little knowledge of the pre-accident functioning of Mr. Amini.  It appears that Dr. Dommisse did not know how many days per week Mr. Amini worked delivering papers both before and after the accident and that he had “no idea” of the housekeeping duties of Mr. Amini before and after the accident.  In fact, Dr. Dommisse testified that, after the accident:  “… I would doubt that Mr. Amini does any housekeeping personally, but, again, as I said, I have – I have no idea.”

[34]         I also cannot conclude that the degenerative changes described by Dr. Dommisse would have become symptomatic inevitably.  I am satisfied that degenerative change is not an infrequent finding on an X-ray of a person in their mid‑50s and, despite the presence of such degeneration, it cannot be assumed to already be or to become symptomatic.  The opinion of Dr. Dommisse that the onset of Mr. Amini’s symptoms would have been present by his mid-50s was only what he referred to as “my guess”.

[35]         I accept the opinion of Dr. Fuller that the prognosis for spontaneous resolution of symptoms of Mr. Amini “… can be considered guarded, if not poor”.  I also accept his opinion that Mr. Amini has reached maximum medical recovery.  I further accept the opinion of Dr. Fuller that degenerative change evidence is a normal phenomenon of aging not related to the accident.  I find that Mr. Amini sustained a grade 2 strain of his cervical and thoracic spine and his lumbosacral spine as a result of the accident which has resulted in decreased flexion and extension, reduced rotation of the cervical spine, and reduced lateral flexion, and that these injuries have continued to cause pain and suffering and physical restrictions.

In assessing non-pecuniary damages at $70,000 for the collision’s role in the lingering symptoms Mr. Justice Burnyeat provided the following reasons:

[46]         Here, I find that there was little, although some, likelihood that Mr. Amini would have begun to experience some pain as a result of the degeneration noted in his x‑rays.  Having made that determination, I also have made the finding that the degeneration was asymptomatic by age 55 when the accident occurred, despite the fact that Mr. Amini had two strenuous, labour-intensive occupations.  While I am in general agreement with counsel for Mr. Amini that the appropriate range of awards for non-pecuniary damages would be $75,000 to $85,000, I take into account all of the factors noted above and award non-pecuniary damages in the amount of $70,000.

$75,000 Non-Pecuniary Assessment for Chronic but Not Disabling Thoracic Outlet Syndrome

Written by admin on . Posted in ICBC Thoracic Outlet Syndrome Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for Thoracic Outlet Syndrome caused and aggravated by a series of collisions.
In today’s case (Griffith v. Larsen) the Plaintiff was involved in three rear end collisions.  The Court found the first collision caused TOS or at least TOS like symptoms and this condition was aggravated by the subsequent collision.  The Court had some concerns about the plaintiff’s credibility noting “there was an element of embellishment” with some of the Plaintiff’s evidence.  The Court accepted the Defendants were responsible for the plaintiff’s injuries but found the condition was not particularly disabling.  In assessing non-pecuniary damages at $75,000 Mr. Justice Affleck provided the following reasons:

[41]         Dr. Salvian has formed his opinions relying heavily on the plaintiff’s self-report of symptoms. This is not a criticism. Nevertheless, my conclusion is that it is appropriate to be cautious when relying on these reports. It is also my conclusion that the plaintiff, whether or not she has TOS, is gradually improving. I do not accept her symptoms are sufficiently severe or her disabilities so pronounced that she is likely to agree to surgery. Her evidence is that she would seek a second opinion from that of Dr. Salvian and in my view she will approach the question of surgery with considerable reluctance. In my view it is more likely that there will be no surgery of the type Dr. Salvian frequently undertakes with his patients.

[42]         As I have mentioned, Dr. McDonald, who knows the plaintiff’s condition, both from before and after the accidents, better than any of the other physicians who have testified, would not restrict the plaintiff’s activities in any way. I accept that evidence and it leads me to conclude the plaintiff has no present significant disabilities. Nevertheless, I find the plaintiff continues to experience symptoms, particularly from the first accident. In my view the second and third accidents were trivial but have had an exacerbating effect on the injuries from the first accident.

[43]         The “common sense” approach recommended by the defendants is that trivial collisions cause trivial injuries. That approach has superficial plausibility but no more. As Mr. Justice Thackray observed in Gordon v. Palmer, [1993] B.C.J. NO. 474 at para. 3:

Significant injuries can be caused by the most casual of slips and falls. Conversely, accidents causing extensive property damage may leave those involved unscathed. The presence and extent of injuries are to be determined on the basis of evidence given in court.

[44]         I find the plaintiff will have had about four years of painful but gradually diminishing symptoms since the first accident until she recovers. I do not find that she is feigning her symptoms but that she has overstated them. It is likely that these symptoms will subside over the coming months, particularly if the plaintiff becomes more physically active as Dr. McDonald recommends.

[45]         I also believe the plaintiff has become overly absorbed by the effects of the accidents on her life and has erroneously come to believe she is disabled from pursuing many of her former physical recreational pursuits. This belief is not shared by Dr. McDonald, nor is it my assessment of the plaintiff’s condition on all of the evidence…

[50]         I assess the plaintiff’s non-pecuniary general damages at the sum of $75,000.

Two Sets of Costs Approrpriate When Two Actions Are Combined for Trial

Written by admin on . Posted in BCSC Civil Rule 15.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing what costs are payable when two actions, set for trial at the same time, settle prior to trial.
In today’s case (Wang v. Dhaliwal) the Plaintiff was involved in two collisions and filed separate lawsuits both of which were set to be heard at the same time.  The cases settled for trial for an agreed sum plus costs.  The Plaintiff argued that two sets of costs were warranted while the Defendant suggested a single set of costs was appropriate given ‘the efficiencies achieved by having the cases joined“.  In agreeing that two sets of costs were appropriate District Registrar Nielsen provided the following reasons:
21]         Although the two actions were ordered to be tried together, by consent, they involved different defendants and the issues were not identical: liability had been denied in the December 15, 2010 action and an allegation of contributory negligence had been raised by the defendant in the June 14, 2011 action. Further, the defendants required two examinations for discovery of the plaintiff in the two separate actions and the plaintiff had to conduct an examination for discovery of each defendant in the two actions.
[22]         The only commonality in the two actions was the fact that they involved injuries to the same plaintiff. In the circumstances, it was appropriate to bring two separate legal actions involving the different defendants and circumstances. It was equally appropriate to eventually join the cases for the purposes of trial once it became apparent this approach was workable and efficiencies would be achieved…
[27]         There will be circumstances where two sets of Civil Rule 15-1 costs will not be appropriate. In the presence case, the defendants have had the benefit of the streamlined process of Civil Rule 15-1 and the benefit of the two actions having been combined for the purpose of being heard together. The defendants have also had the further benefit of two separate legal actions having been commenced, which allowed the plaintiff to be examined for discovery twice, once in each action. In both actions, trial preparation was substantially completed.
[28]         In the circumstances, the sum of $6,500 in fees is awarded for each action, with applicable taxes.
 

"Customer Safety" Based Incident Report Ordered Disclosed as Non Privileged

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering a Defendant in a personal injury lawsuit to disclose an incident report created following the incident at question.
In today’s case (Smith v. Air Canada) the Plaintiff “was in her seat when a bag allegedly fell on her after a fellow passenger failed to store it securely in the overhead compartment.“.  She sued Air Canada alleging negligence.  Following the incident Air Canada created an “incident report” but refused to provide the Plaintiff with a copy of this document alleging it was created for the dominant purpose of litigation.  Madam Justice Gropper disagreed finding it was instead created primarily with customer safety in mind and ordered it disclosed. In reaching this conclusion the Court provided the following reasons:
[24]         As noted, the first part of the test, whether the document was prepared in contemplation of litigation, must be satisfied before the court goes on to consider the dominant purpose of the creation of the document. Master Baker considered the first part of the test in light of the affidavits that were provided and as a matter of fact. He properly considered, in my view, that when Ms. Soroka prepared her incident report she was attempting to discover the cause of the accident, whether there were witnesses, and the nature of the injuries sustained by Ms. Smith. She said that her first concern was customer safety.
[25]         As with any claim of privilege, the trier of fact must assess whether the assertion that the document was prepared in contemplation of litigation is reasonable. He cannot simply rely on the statement that the document was prepared in contemplation of litigation. If that were so the mere assertion would determine whether the document was privileged.
[26]         Master Baker assessed the circumstances at the time the report was written and concluded that it was not reasonable to accept that Ms. Soroka prepared the incident report in contemplation of litigation.
[27]         As I stated, the Master applied the appropriate test and reached a reasonable conclusion. The Master’s view that litigation was not a reasonable prospect at the time the incident report was created is not clearly wrong.
[28]         Having reached that conclusion, it was not necessary for Master Baker to consider the dominant purpose test. He did not conflate the two-part test as Air Canada suggests. Air Canada did not clear the first hurdle.
 

$25,000 Non-Pecuniary Assessment for Multiple Rib Fractures

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

Reasons for judgement were released today by the BC Supreme Court, Vernon Registry, assessing damages for multiple rib fractures caused by a collision.
In today’s case (Bariesheff v. Bennett) the Plaintiff was involved in a 2011 rear end collision.  Fault was admitted by the Defendant.  The plaintiff  “fractured five of her left lower ribs, more particularly the 8th to the 12th rib of the left chest wall, for which the defendant has accepted responsibility.“.
The Plaintiff alleged the crash caused a chronic low back injury as well although this was rejected by the Court.  In assessing damages for the rib injuries at $25,000 Mr. Justice Cole provided the following reasons:
[55]         The following cases provide a range of between $15,000 and $35,000 for general damages: Sinnott v. Boggs, 2007 BCCA 267; Kapelus v. Hu, 2013 BCCA 86; Mak v. Eichel, 2008 BCSC 1102; Sun v. Sukhan, 2012 BCSC 365; Currie v. McKinnon, 2012 BCSC 698; De Abreu v. Huang, 2013 BCSC 398.
[56]         I have taken into account the relatively young age of the plaintiff, the fact that she missed her graduating ceremonies to a great extent, which was an important event of her life, and that the pain, though essentially gone, persisted for about three years and is still tender to the touch. I am satisfied that an appropriate award for general damages is $25,000.
 

$100,000 Non-Pecuniary Assessment for Fractured Shoulder and Wrist

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

Adding to this site’s archived cases addressing non-pecuniary damages for wrist and shoulder injuries, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for orthopaedic injuries to these areas.
In today’s case (Azam v. Bilaya) the Plaintiff was involved in two motorcycle collisions.  Fault was admitted in both.  In the first collision the Plaintiff suffered a broken shoulder and various soft tissue injuries.  These were aggravated in the second crash which also caused a broken wrist.  In assessing non-pecuniary damages at $100,000 then modestly reducing these to account for pre-existing conditions Madam Justice Gerow provided the following reasons:
110]     It is clear that Ms. Azam was injured in both motor vehicle accidents. In the first accident, she suffered a broken shoulder and a neck and back injury. In the second accident, she suffered a broken wrist, injury to her knees and an exacerbation of her pre-existing spine condition.
[111]     I accept she does have chronic pain in her back which is exacerbated by activity; however, I do not accept Ms. Azam’s evidence regarding the impact of her injuries. I did not find Ms. Azam a particularly credible witness, and there is evidence that she is able to function at a higher level than she testified to…
[126]     Having considered the extent of the injuries, the fact that she is still having chronic pain after the accident which flares up from time to time, the guarded prognosis for full recovery, as well as the authorities I was provided, I am of the view that the appropriate award for non-pecuniary damages would be $100,000, if the accidents were the only cause of Ms. Azam’s ongoing symptoms.
[127]     However, Ms. Azam must be put back in the position she would have been in if the two motor vehicle accidents had not occurred. The evidence establishes that Ms. Azam suffered from a pre-existing symptomatic spine condition which had caused her periodic back pain in the 10 years prior to the first accident. Although it was not symptomatic right before the first accident, is reasonable to infer Ms. Azam would likely continue to suffer from periodic back pain, regardless of the accidents. Having taken that into consideration, I am of the view that the appropriate award for non-pecuniary damages is $85,000.
 

BC Supreme Court Awards Damages for Cost of Medical Marijuana Program

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With medical marijuana gaining more acceptance as a prescribed treatment for a variety of health conditions, costs associated with such treatments are receiving judicial consideration in personal injury litigation.
In what is at least the second decision in BC to do so (click here for the first) reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, assessing damages for the cost of medical marijuana.
In today’s case (Amini v. Mondragaon) the Plaintiff was injured in a 2011 collision that the Defendant accepted responsibility for.  The Plaintiff suffered various lingering injuries and a medical marijuana program was recommended to address some of the Plaintiff’s symptoms.  Mr. Justice Greyell assessed damages of $6,500 to account for the cost of this recommendation and in doing so provided the following reasons:
[133]     Dr. Hershler strongly recommended Ms. Amini be put on the Medical Marijuana Program to assist in controlling her pain so as to allow her to work on strengthening exercises for her neck and back. He was of the view this would allow her a “good chance for effective pain management”. I accept his recommendation as a reasonable one.
[134]     Dr. Hershler recommended she be prescribed ten grams of cannabis per day to be used as an ointment. He recommended this be followed with 20 sessions with a physiotherapist to build core strength and range of motion.
[135]     Dr. Hershler estimated the cost of a six month program using a dosage of 10 grams per day to be approximately $9,000. In cross-examination counsel suggested the ointment could be made at considerably less cost if the plaintiff, as a Nurse, made her own. Dr. Hershler did not disagree.
[136]     I award the plaintiff $6,500 for a Medical Marijuana Program and $1,500 for the cost of 20 physiotherapy sessions (at $75 each) to follow the medical marijuana treatments.