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BC Court of Appeal Strips Modest Diminished Capacity Award "As a Matter of Principle"

Written by admin on . Posted in ICBC Wage Loss.

Reasons for judgement were released today by the BC Court of Appeal stripping a Plaintiff of modest damages awarded for diminished earning capacity.
In today’s case (Kim v. Morier) the Plaintiff was injured in a collision and sued for damages.   Despite her injuries she was able to work 12-15 hour days as a floor plan technician. She had no lost income by the time of trial.  Her injuries lingered and were expected to indefinitely though the “degree of disability would be mild, that her level of disability is “fairly small” “.
In overturning the $10,000 damage assessment for this loss the BC Court of Appeal provided the following comments on the evidentiary foundation needed for diminished earning capacity damages:
[6]           On appeal, the defendant submits that the Court erred in making an award under this head in the absence of a finding of a “real and substantial possibility” that Ms. Kim’s earnings in future would be impaired. The defendant relies in particular on Roberts v. Kidd (1998), 52 B.C.L.R. (3d) (C.A.), where Mr. Justice Hollinrake for the majority noted that it is not sufficient for an award under this head for the plaintiff to testify as to a loss of confidence or ability to project herself without showing a “functional” element. (Mr. Justice Lambert dissented on this point.) In the result in Roberts, this Court set aside the award for diminished income and incapacity.
[7]           More recently, in Perren v. Lalari, 2010 BCCA 140, 3 B.C.L.R. (5th) 303, this court emphasized at paras. 21, 32, and 33 the requirement for the plaintiff to meet the onus of showing at least a “real possibility” of future loss, as opposed to a theoretical loss. Similarly, in Steward v. Berezan, 2007 BCCA 150, 64 B.C.L.R. (4th) 152, the Court discussed the comment of Madam Justice Southin in Palmer v. Goodall (1991), 53 B.C.L.R. (2d) 44, to the effect that it was “impossible to say” the plaintiff in that instance would not suffer reduced earning capacity in the future. Mr. Justice Donald wrote in Steward at para. 17
But the language in question there was used in the context of appellate review and, with respect, it cannot be transposed to an original analysis at the trial level. The claimant bears the onus to prove at trial a substantial possibility of a future event leading to an income loss, and the court must then award compensation on an estimation of the chance that the event will occur: Parypa v. Wickware, 1998 BCCA 88, 169 D.L.R. (4th) 661¶ 65.
This is not a heavy onus, but it must be met for a pecuniary award to be justified.
[8]           In my view, the trial judge here did err in equating the loss of capital asset here with the plaintiff’s own perception. As the cases demonstrate, that is not enough. The plaintiff must show that it is a realistic possibility she will be less able to compete in the marketplace – with economic consequences, not merely psychological ones. In my view as well, the trial judge’s statement made after the award was pronounced, that Ms. Kim “may” be less capable of maintaining her disciplined approach to work also fell short. As we suggested to counsel this morning, the word “may” is essentially speculative and does not equate to a finding of a real possibility.
[9]           Mr. Carta said all that could be said in support of the award, but I agree with the defendants that as a matter of principle the findings here did not support an award for loss of earning capacity.
[10]        I would allow the appeal and set aside the award under this head. I would also order that the parties bear their own costs, given that this appeal was brought as a matter of principle.
 

ICBC Projects Nearly $1Billion in Profit From 2013-2016 ; Government Profit Scoops to Continue

Written by admin on . Posted in Uncategorized.

It’s that time of year again.  With the BC Government’s Budget also comes ICBC’s 2014-2016 Service Plan.  As always, these documents give insight into the actual and projected financial health of ICBC.
ICBC is projecting nearly $1 Billion in profits from 2013-2016 and the Government plans to scoop an average of $160 Million annually over this period.
The below excerpt is from the Budget:
Insurance Corporation of British Columbia: ICBC’s net income is forecast to average
$214 million annually over the fiscal plan period. The outlook assumes average annual
growth of 1.7 per cent in the number of insured vehicles and a 4.0 per cent average
annual increase in claims costs. Over the fiscal plan period, ICBC is forecast to remit an
annual average $160 million of its excess Optional insurance capital to the consolidated
revenue fund to support core government services.
Here are the details of ICBC’s projected financial performance over this period:

 

$45,000 Non-Pecuniary Assessment for Lingering but Resolving Soft Tissue Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Adding to this site’s archived case summaries addressing soft tissue injury damages, reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, assessing damages for a lingering whiplash injury.
In this week’s case (Kelly v. Kotz) the Plaintiff was involved in a 2009 collision.  The Defendant admitted fault.  The Plaintiff suffered a whiplash type injury which caused chronic headaches.  Although there was improvement with time some symptoms still lingered at the time of trial.  In assessing non-pecuniary damages at $45,000 Madam Justice Hyslop provided the following reasons:
[100]     I do find that in the accident the plaintiff suffered neck and upper back injuries, and that headaches are a symptom of those injuries…
[105]     She stated that six months after the accident there were days that she felt normal, though there were times that the headaches got worse as to severity and duration and affected her level of concentration. These descriptions are consistent with her reporting to Sarah Robson and Carey Jones.
[106]     When Dr. Brownlee saw the plaintiff, she had normal range of motion and some pain with flexion, particularly with the extension of her neck. The plaintiff told Dr. Brownlee that her symptoms gradually improved, but never resolved themselves completely…
[122]     I conclude that the plaintiff’s symptoms have improved as she described to Dr. Brownlee and will continue to improve.
[123]     In assessing non-pecuniary damages, I considered the plaintiff’s special circumstances and the case law cited to me by both plaintiff and defendants.
[124]     I award $45,000.00 for non-pecuniary damages.
 

$120,000 Non-Pecuniary Assessment for Vestibular Injury

Written by admin on . Posted in Uncategorized. 53 Comments on $120,000 Non-Pecuniary Assessment for Vestibular Injury

Reasons for judgement were released last week by the BC Supreme Court,  New Westminster Registry, assessing damages for chronic vestibular issues following a motor vehicle collision.
In last week’s case (Reynolds v. M. Sanghera and Sons Trucking Ltd.) the Plaintiff was involved in a 2009 collision.  The Defendant’s tractor trailer rolled down a hill, unoccupied, colliding with the Plaintiff’s vehicle.  The plaintiff suffered a variety of soft tissue injuries along with vestibular dysfunction.  In assessing non-pecuniary damages at $120,000 Mr. Justice Davies provided the following reasons:
[52]         Mr. Reynolds suffered serious and debilitating injuries in the collision, which have had a profound impact upon his enjoyment of life. The most serious of those injuries are the injuries to his neck and the vestibular injuries he suffered which separately or in tandem have caused fear of further injury from rapid movement, migraine headaches, anxiety, fear of driving and other travel, and sleeplessness. The injuries are still unresolved and will likely continue to affect all aspects of his enjoyment of life.
[53]         I accept the evidence of the lay witnesses that prior to the collision Mr. Reynolds was a man of almost boundless energy and enthusiasm for life. While he still tries hard to work in his business and does so with some success, his enjoyment of his work is now compromised by his medical conditions caused by the collision. His life is now far more one-dimensional than before, with work and the energy required to continue with his business now dominating all other aspects of life for which he now has both less energy and time because of the toll that simply working now exacts.
[54]         As to the prognoses for improvement in future, Dr. Underwood opined that it is extremely guarded. Dr. Stevens concluded that it is highly unlikely that Mr. Reynolds will return to his pre-collision state. She also stated that Mr. Reynolds downplays his symptoms.
[55]         Although I consider the award for non-pecuniary damages suggested by the defendant to be inordinately low, I also do not agree with Mr. Arnold’s submission that an award of $150,000 is appropriate in this case. In my view, the injuries suffered by Ms. Felix which resulted in a non-pecuniary damage award of $200,000, and by Ms. Cantin which resulted in a non-pecuniary award of $150,000, were more serious and debilitating than those suffered by Mr. Reynolds. They involved more serious physical injuries requiring surgery, and more severe psychological problems in the case of Ms. Felix, and more cognitive and psychological problems in the case of Ms. Cantin.
[56]         In all of the circumstances I find that an award of $120,000 will appropriately compensate Mr. Reynolds for his past, present and future pain and suffering and loss of enjoyment of life. That award recognizes the impact of the debilitating effect of the neck injury suffered by him and the related dizziness and vertigo that are similar to those suffered by Mr. Moukhine and Mr. Yang, both of whom were awarded $90,000, but also allows compensation for the debilitating effects of his past, present and future mood and anxiety disorders and the sleeplessness which has so dominated his life since the collision and will likely continue.

$85,000 Non-Pecuniary Assessment For L3-4, L4-5 Disc Injuries

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages following a disc injury caused by a collision.
In this week’s case (Shipley v. Bye) the Plaintiff was involved in a 2010 rear end collision. The Defendant was found at fault.  The Plaintiff suffered multilevel disc issues following the crash which continued to pose some problems at the time of trial.  The Plaintiff worked at a warehouse and “was limited to unskilled or semi-skilled work“.  While he was able to eventually return to his occupation the injuries were expected to limit his ability to engage in heavy physical demands.  In assessing non-pecuniary damages at $85,000 Madam Justice Kloegman provided the following reasons:
[19]         In his report of September 17, 2013, Dr. Weiss concluded that:
1.     The motor vehicle accident produced an acute discogenic injury at the L4-5 level with possible L5 nerve root irritation. The plaintiff’s radicular symptoms had resolved and the disc prolapse had retracted.
2.     The current pain that the plaintiff was feeling was multi-factorial from a discogenic lesion at the L4-5 level, a pre-existing but a symptomatic dysplastic L3‑4 facet joint which had become inflamed from the accident, and soft tissue/ligamentous pain at the ilio-lumbar region which Dr. Weiss could not say was caused by the accident.
[20]         Dr. Weiss also opined in his report of September 2013 that the plaintiff had lost the physical capacity and functionality to perform heavier forms of work related activity. He stated that it is also likely that the plaintiff will remain compromised in his ability to perform heavy physical work due to persistent back pain, some of which was directly attributable to the accident. Dr. Weiss could not say that the accident had caused any acceleration in degenerative disc disease of the plaintiff’s lower back.
[21]         With the exception of the cause of the possible nerve root involvement at L5, Dr. Weiss’ conclusions were not challenged or contradicted and I accept them as accurate. I find that an L4-5 discogenic injury and an aggravation of a previously asymptomatic congenital dysplastic L3-4 facet joint were caused by the motor vehicle accident. Any other injuries or pain complained of by the plaintiff during the material time have not been proved, on a balance of probabilities, to have been caused by the subject accident…
[25]         I have reviewed the authorities provided to me by both counsel, some of which were the same. The most factually similar cases are Esau v. Myles, 2010 BCSC 43; Roy v. Storvick, 2013 BCSC 1198; Peso v. Hollaway, 2012 BCSC 1763; and Jackson v. Jeffries, 2012 BCSC 814. It appears from these cases that the plaintiff’s damages are in the range of $70,000 to $100,000. In my view, the plaintiff here should be awarded the sum of $85,000 for non-pecuniary damages.
 

Informal Settlement Offers Revoke Prior Formal Settlement Offers

Written by admin on . Posted in BCSC Civil Rule 9. 63 Comments on Informal Settlement Offers Revoke Prior Formal Settlement Offers

Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, confirming that when a party who made a formal settlement offer under the Rules of Court tenders a subsequent informal settlement offer the initial offer is withdrawn.
In today’s case (Arsenvoski v. Bodin) the Defendants issued a formal settlement offer.  After some counter offers the Defendants rejected the Plaintiff’s offers and responded that “my clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs” (an offer less generous than their formal offer).
The Plaintiff then attempted to accept the formal offer.  Mr. Justice Weatherill confirmed that the old offer was no longer valid finding that the common law applied.  In reaching this conclusion the Court provided the following reasons:
[12]         This is a case of first instance under Rule 9-1.  All of the cases relied upon by plaintiff’s counsel were in the context of the Rule 37, which expressly provided for how a formal offer to settle could be withdrawn before acceptance.  The one exception is the decision of Madam Justice Fitzpatrick in Janzen where she found that, although there had been a clear and unequivocal rejection by the plaintiff of the defendant’s counter-offer, there had not been a clear and unambiguous revocation by the plaintiff of her earlier formal settlement offer.  In that case, the plaintiff had not made a new settlement offer.
[13]         Here, the defendants’ Second Offer stated: “My clients would, however, accept a Consent Dismissal Order in exchange for a waiver of their costs”.  Those words amounted to a new settlement offer.  There was nothing unclear or unequivocal about them.
[14]         I agree with defendants’ counsel that in the absence of language in Rule 9-1 regarding how and when a formal settlement offer is withdrawn, the common law applies.
[15]         I do not accept the argument that a formal settlement offer is not revoked by an informal settlement offer.  While that may have been the case under the language of former Rule 37, it is no longer the case under Rule 9-1.  A settlement offer, formal or informal, is revoked upon the communication of a new settlement offer, formal or informal.  I agree with the following statement of the law by Wilson J. in Sidhu v. Sekhon, [1997] B.C.J. No. 102 (S.C.) at para. 8:
I think interpretation of the rule contemplates the application of principles of contract law.  And that those principles must be implemented before resort is had to policy considerations.  In my view, those principles establish a number of precepts.  First, an offer may be withdrawn before acceptance.  It is sufficient for that purpose, if the offeree has actual knowledge that the offeror has done some act inconsistent with the continuance of the offer.  Further, the addition of a new term or condition, to an earlier offer, before acceptance, is the withdrawal of the earlier offer, and the submission of a new offer, of which the new condition or term is a part.  From the time the new condition is submitted, the earlier offer is withdrawn, and is no longer open to acceptance or rejection, by the party to whom it was presented.  Finally, there can be only one offer outstanding at a time.  A later offer to the same offeree, on the same subject matter, has the effect of cancelling the prior offer.
 

RSS Issues Fixed

Written by admin on . Posted in Uncategorized.

Several of my readers have informed me that this site’s RSS feed has not been working for the past few weeks. I have looked into this and understand this has now been remedied.
Sorry for any inconvenience this has caused.  If anyone who subscribes via RSS can confirm receipt of this post that would be much appreciated!
 
 

School Found Liable After Child Sneaks Onto Roof and Falls

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


(Update December 1, 2014 – the BC Court of Appeal upheld the below decision in reason released today)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, finding a school liable after a child was severely injured following a fall from the school roof.
In today’s case (Paquette v. School District No. 36) the 12 year old plaintiff was playing on school grounds after hours.  There was a tree in close proximity to the school.  He climbed the tree onto the roof of the school with a friend.  The vice principal heard them and yelled for them to get down.  Trying to go unidentified they attempted to climb down via a different route.   The Plaintiff “hung down from the edge of the roof, presumably placed his feet on the top of the wire fence, and safely jumped to the ground. Unfortunately Owen lost his grip on the roof. He slipped and then fell all the way onto a cement surface at the bottom of the stairwell, a total distance of about 20 or 21 feet.”
The Plaintiff sued for damages.  The School was found 75% at fault for having the tree in such close proximity to the school that kids could climb it.  In reaching this conclusion Madam Justice Sharma provided the following reasons:
[35]         First, most of the time the defendant knew people had been on the school roof, the defendant did not know how they got there. The lack of evidence about people having previously used the cherry tree to access the roof is, therefore, unsurprising. On one occasion the defendant did know that someone climbed a tree close to the school to access the roof. As Mr. Hurd rightfully conceded, a tree close to the school will tempt kids to climb it and get onto the roof. I conclude it was foreseeable that trees close to the school might be used to access the roof. It is simple common sense that if a child can get onto a roof, it is reasonably foreseeable that the child might fall off that roof and get badly injured.
[36]         Second, there was no evidence of “regular monitoring” of potential access points to the school roof. If there was at any time either a schedule of routine inspection or an assessment of trees proximate to the school that could potentially provide access to the roof, I would have expected that to be put into evidence as it would have clearly been material to this case.
[37]         Instead, the evidence demonstrates that if the defendant took any action in response to knowing youth had been on the roof, it was only reactive and ad hoc. This was despite the fact that there were numerous possible access points to the roof, as depicted in Mr. Delavalle’s photographs.
[38]         Mr. Hurd’s evidence establishes that this school had a problem with youth getting onto its roof. The numerous incidents he recalls confirm that this problem was known to the principal, teachers, maintenance workers, students and their families and others. Despite this, there is no evidence that the defendant required anyone to turn their mind to whether any trees were growing too close to the school roof and providing the access that allowed for this problem to persist.
[39]         In making these findings, I am mindful that the defendant is not expected to be perfect and that it would be impossible to completely prevent anyone getting on the school roof other than in an authorized fashion. However, taking into account all the circumstances of this case, it was unreasonable that the defendant allowed the cherry tree to grow so close to the school’s roof.
[40]         The defendant also argues it should not be held liable because most, if not all, other instances of people being on the roof occurred on the weekend and probably involved teenagers. The problem with that submission is the issue in this case is not about when the roof was accessed. Rather, the issue is whether the defendant’s actions in relation to possible roof access points were reasonable. The school is a permanent structure and its grounds are open to the public. When the roof was accessed is immaterial to the determination of whether the defendant acted reasonably in allowing the cherry tree to grow so close to the roof.
[41]         The same reasoning can be applied to the defendant’s argument that it was likely only older, non-students who had been on the roof previously. I note the evidence about the age of the people on the roof on weekends was obviously speculative, except for the two instances Mr. Hurd witnessed. It would be imprudent to place significant weight on this point when the evidence is not conclusive. But even if it was proven that all prior incidents involved teenagers, I do not find that that fact would support a conclusion that this accident was not foreseeable. If there are numerous instances of teenagers being on the roof, the elementary school students would know about it. This inference is confirmed by Mr. Hurd’s evidence that he received reports from his students about people on the roof during weekends. It is common sense that if students know that older youth have been on the roof, they may be tempted to do the same. More than one witness agreed that tree climbing is a normal part of childhood.
[42]         Mr. Hurd testified he was surprised that was how the boys got on the roof because he thought the tree was flimsy. As noted above, I have found the cherry tree had a study branch close to the roof. More importantly, in my view a reasonable person understands that a child might try climbing any tree close to the roof, flimsy or not. Owen was a 12 year old boy. Children act impulsively, with little forethought about the consequences of their actions and with limited insight. Put more simply, reasonable people foresee that children can and often do stupid things that are dangerous even when they know they shouldn’t.
[43]         I am not suggesting that the inherent nature of childhood means an occupier is liable for anything that a child might do. As always, each case must be assessed in context, reviewing all the circumstances.
[44]         Given the circumstances at this particular school, a reasonable person would foresee that the cherry tree (or any other tree in similar proximity to the school roof) might be used by kids to climb onto the roof. As such, the defendant is liable for not taking reasonable actions to prevent children accessing the school roof via the cherry tree.

Trial Re-Opened to Prove Prior Inconsistent Statement

Written by admin on . Posted in Civil Procedure, Uncategorized.

Reasons for judgement were recently published by the BC Supreme Court, Vancouver Registry, discussing the discretion to reopen a case prior to judgement to call new evidence.
In the recent case (Kostecki v. Li) the Plaintiff was injured in a collision and sued for damages.  In the course of the trial she was cross examined about statements attributed to her in a consultation letter from a treating neurologist which “can be seen as inconsistent with Ms. Grace’s evidence of the seriousness of the accident and of the persistence and seriousness of her ongoing symptoms.”
The Plaintiff did not adopt the statements contained in the letter.  After the close of the case the trial judge noted the limitation of such cross examination absent proof the statement was made.  The Defendant brought an application to re-open the case and call the doctor to prove the statement.  In allowing this request Mr. Justice Schultes provided the following reasons:
[18]         No judgment has been pronounced and only the plaintiff has made submissions. The cases demonstrate that the discretion is exercised much more readily prior to judgment.
[19]         The failure to call this witness originally was due to a simple mistake by counsel in failing to grasp the evidentiary value of Dr. Beckman’s report standing alone, if the plaintiff failed to adopt its relevant portions. The purpose of reopening would only be to remedy that error and to put the defendant in the position that he would have been in if it had not been made. It confers no additional benefit beyond this corrective purpose. It represents proof of statements with which the plaintiff has been confronted, and the only potential additional evidence will be any explanation by Dr. Beckman of his process of recording patient histories and any aspects of that process that might allow him to vouch for the accuracy of the statements he has recorded in his letter.
[20]         In this regard, as in this case, when it is the defendant who applies to reopen and the plaintiff has not called reply evidence, the additional defence evidence can simply be considered as a continuation of the defence case and is even less prejudicial than when a plaintiff seeks to reopen:  Mitsubishi Heavy Industries Ltd. v. Canadian National Railway Company, 2011 BCSC 1536, at para. 34.
[21]         In my view, prejudice to the plaintiff here is minimal or non‑existent. What she loses is the purely tactical benefit of a slip-up by opposing counsel. We obviously work in an adversarial system and hard knocks are inevitable, but my having to decide the critical issue of credibility with a piece of evidence that may be highly relevant to that assessment sitting on the sidelines only because of counsel error is indeed the stuff of which miscarriages of justice are made.
[22]         Accordingly, the application is allowed with respect to the evidence of Dr. Beckman only. His evidence in the reopening will be restricted to proof of those portions of his letter that were put to Ms. Grace. That obviously includes evidence going to the accuracy of what he has recorded, including his note‑taking and report‑writing practices.

"Exaggerated" Injury Claim Dismissed by BC Supreme Court

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

Update March 10, 2015 – The below decision was overturned by the BC Court of Appeal which found that the trial judge made “palpable and overriding error” in the assessment of the evidence.  A new trial was ordered.
_______________________________________
Credibility plays a vital role when advancing a claim with subjective injuries.  Negative credibility findings can undermine such a claim as was demonstrated in reasons for judgement released this week by the BC Supreme Court, New Westminster Registry.
In this week’s case (Pacheco v. Antunovich) the Plaintiff was involved in “a very minor” rear end collision in 2012.  The Court found that the Defendant was “travelling at a speed of no more than two kilometers per hour at the time of the collision“.   The Plaintiff alleged injury and sought over $100,000 in damages at trial.  The Court rejected the entirety of the claim and ordered the Plaintiff to pay the Defendant’s costs.  In reaching this decision the Court was critical of the Plaintiff’s credibility and provided the following reasons:
[10]         The credibility of the plaintiff is very important in a case like this where the foundation for most of the plaintiff’s complaints is subjective. Therefore, it is prudent for me to deal with the issue of credibility.
[11]         The plaintiff was cross-examined on her medical records for the period before the collision. It is clear from those records that the plaintiff attended her doctor on a very regular basis in the months and years preceding the collision. Although the plaintiff testified that she was active in sports before the collision, her medical records seem to indicate that she visited her doctor in relation to ongoing pain and repercussions she claimed she was still suffering from her previous injuries. In fact, one of these visits in which she complained of this type of pain occurred about a month before the collision.
[12]         Another result of the cross-examination of the plaintiff on her medical records was the fact that she previously complained of weight gain and hair loss in September 2010. This is exactly one of the claims she alleges in this action as a result of the collision.
[13]         Further, throughout the trial and at five or ten minute intervals, the plaintiff would stand up from her seat and continuously stretch so that I could “see” the pain she experiences when she sits in one position for a period of time…
[19]         I did not find the plaintiff to be a very credible witness at trial. Her testimony was not reasonable within the circumstances of the very minor “fender bender” in this case. I find that she had a strong penchant for gross exaggeration and, as such, I do not accept her evidence…
25]         I find that the plaintiff has failed to prove on a balance of probabilities that she suffered any injury as a result of the collision. The plaintiff’s action is therefore dismissed with costs.