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Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

Written by admin on . Posted in BCSC Civil Rule 15. 64 Comments on Trial Length in and of Itself Sufficient to Keep Matter in Rule 15

In 2011 the BC Supreme Court confirmed that the factors listed in the overhauled fast track rule (case value and trial length) were exclusive of each other and if either was satisfied that was sufficient for a fast track proceeding.  Reasons for judgement were released last week by the BC Supreme Court, Victoria Registry, confirming this interpretation of the Rule.
In last week’s case (Foster v. Chandel) the Defendant brought an application to remove a case from Rule 15 arguing the claim was not suitable for fast track prosecution.  The Plaintiff conceded that the case “might exceed $100,000” but the Court noted that this in and of itself was insufficient to take a case out of Rule 15.  In dismissing the defense application Master Bouck provided the following reasons:
[25]         It appears on the evidence before me that the trial can be completed in three days. The plaintiff says that she can complete her case in just over one day. The defendants’ need to cross-examine the plaintiff’s two experts has not been firmly determined, but the time required for this purpose should not be more than one day. That leaves sufficient time to hear the defendants’ witnesses as well as closing submissions. In any event, the defendants are not even certain of the witnesses to be called or the medical evidence that will be led at trial. To a large extent, the defendants’ evidence concerning the length of trial is based on a yet to be determined witness list and trial plan.
[26]         The fact that the plaintiff’s claim for damages might exceed $100,000 is not in and of itself justification for removal of the action from Fast Track: Hemani v. Hillard, [2011] B.C.J. No. 1924 (S.C.).
[27]         Finally, the plaintiff is prepared to continue her examination for discovery for up to three hours beyond the time allowed under Fast Track. That concession removes any potential prejudice to the defendants who say that certain subject matters have yet to be explored. No order is made with respect to the examination time as the relief was not specifically sought. The defendants always have the opportunity to apply for an order extending the time if this remains an area of contention.
[28]         The defendants’ application for removal of this action from Fast Track is at best premature. As the evidence develops, it may become obvious to the parties that the action ought to be removed if only because the trial will certainly consume more than three days. In those circumstances, it might be in the plaintiff’s best interests to consent to the removal to ensure that a trial date is not lost and costs are not so limited: Rule 15-1(14), Sandhu v. Roy, 2011 BCSC 1653.

Private "Non Urgent" MRI Cost Denied as Disbursement

Written by admin on . Posted in Uncategorized. 52 Comments on Private "Non Urgent" MRI Cost Denied as Disbursement

Earlier this year reasons for judgement were released declining to reimburse a private MRI cost as a disbursement due to lack of evidence of urgency.   Reasons for judgmeent were released last week by the BC Supreme Court, New Westminster Registry, reaching a similar conclusion.
In last week’s case (Kumanan v. Achim)the Plaintiff was injured in a collision and her treating physicians requested an MRI for diagnostic purposes although the need for this was described as “non-urgent”..  The Plaintiff arranged the MRI through a private facility.  In declining the disbursement associated with the private MRI the Court noted that while there was nothing unreasonable about obtaining an MRI in there was no evidence justifying straying through the MSP system.  In rejecting the disbursement the Court provided the following reasons:
[4]             In evidence was a note from Dr. Harji dated July 16, 2011 that read:
For diagnostic clarification in regards to this individual’s MVA related injuries, I would advise MRI of cervical and lumbar spine.  I would avoid radiation based imaging, i.e. x-rays and CT as well as bone scans.
[5]             On July 17, 2011, Dr. Suddall who was a physiatrist scheduled to examine Ms. Kumanan also requested an MRI examination of her cervical and lumbar spine.  His note read:
Persistent neck and back pain with minor right sided hand and leg symptoms.  Difficulty functioning and remains unable to resume working.  X-ray report, CT report pending from Mount St. Joseph Hospital.  I have asked patient to proceed with MRI of cervical and lumbar spine privately via lawyer and ICBC.
[6]             Importantly, Dr. Harji describes the Plaintiff’s status for this purpose as non-urgent…
[10]         …In this case, there was no trial date pending when the MRI examination was requested by the two physicians.  Rather, a notice of trial was not filed until August 2012 reserving a trial date for March 2013.  As matters transpired, this case settled in February of 2013.
[11]         I was not provided with any evidence as to what the wait time may have been to have the MRI examination done in the public health care system.  It is also noteworthy that while the recommendation for the MRI examination was made in mid July 2011 it was not acted upon until after some other x-rays were done in October 2011 and only after that, on November 2nd, 2011, was the MRI examination done.
[12]         I am left to wonder whether that if a place had been reserved in the public health care system in July 2011, the Plaintiff might not have had the MRI examination done if not by November of 2011, not too much longer thereafter.
[13]         Accordingly, I am not satisfied that it was reasonable to incur this expense when it was incurred and it is disallowed.

Privileged and Undisclosed Report Recoverable As Disbursement

Written by admin on . Posted in Uncategorized. 161 Comments on Privileged and Undisclosed Report Recoverable As Disbursement

Reasons for judgement were released recently by the BC Supreme Court, New Westminster Registry, making it clear that the costs of a privileged and undisclosed expert report can indeed be a recoverable disbursement.
In the recent case (Sidhu v. McNair) the Plaintiff was injured in a 2009 collision.  In advancing the case the Plaintiff obtained a report form the Plaintiff’s GP and neurologist.  The GP report was privileged in not disclosed.  ICBC argued that “this disbursement…was not necessary or proper (due to the fact) that Plaintiff”s counsel chose to maintain privilege over its contents”
District Registrar Cameron disagreed and allowed the disbursement. In doing so the Court provided the following reasons:
[8]  I was also referred to a recent decision of Master Bouck in Cooknell v. Cooknell, 2013 BCSC 1653.  Her Honour very cogently set out the principles that ought to be applied in determining whether or not a disbursement should be recovered and says:
A “necessary” disbursement is one which is essential to conduct the litigation. A “proper” disbursement is one which is not necessary but is reasonably incurred for the purpose of the proceeding:MacKenzie v. Darke, 2003 BCSC 138 at para. 18..
Her Honour goes on to say:
 When considering whether a disbursement is proper, the correct viewpoint to be adopted by a taxing officer is that of a sensible solicitor sitting in his chair and considering what, in light of his then knowledge, is reasonable in the interests of his client: Francis v. Francis and Dickerson, [1955] 3 All E.R. 837 at p. 840. Also, taxing officers ought not to second guess a competent counsel doing a competent job, solely on the grounds that other counsel might have been more sanguine or less cautious in determining how the job ought to be done
[9]  I respectfully agree with these statements and having been advised of the rationale for obtaining the report and the matters addressed by Dr. Sekhon I am satisfied that the decision that was made to obtain the report was proper ad the cost is reasonable.  The disbursement is allowed as presented.
To my knowledge this decision is not publicly reported but as always I am happy to provide a copy to anyone who contacts me and requests one.

An IME "Should Not Be Ordered Simply To Allow The Defendants To Ask the Same Questions Asked in Discovery"

Written by admin on . Posted in BCSC Civil Rule 7, independent medical exams.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing an application for an independent medical exam noting the Defendant’s could have obtained the sought information through the discovery process.
In this week’s case (Foster v. Chandel) the Plaintiff was injured in a 2009 collision.  The Plaintiff agreed to attend a Defense medical exam.  Subsequent to this the Defendant requested a second exam with a psychiatrist.   The Defendant argued that this was necessary because “the plaintiff is taking the maximum dosage of anti-depressant medication; has been seen by a psychiatrist (but not for treatment); and is suggested [by her family doctor] to be suffering from a mood disorder related to chronic pain.“.
Master Bouck dismissed the application noting all of this could be explored through the discovery process.  In reaching this conclusion the Court provided the following reasons:
[18]         There is no evidence from any medically-trained person suggesting that a psychiatric examination is necessary or useful to either diagnose or treat the plaintiff. The plaintiff is taking medication in the dosage recommended by physicians with no suggestion of prescription abuse. The emotional symptoms are said by the medical experts to emanate from the plaintiff’s physical pain, not from any alleged psychiatric condition or disorder.
[19]         The defendants submit that the psychiatric examination may reveal other causes for the plaintiff’s anxiety and depression. It may also reveal the nature and extent of these conditions.
[20]         Such information can be sought at the plaintiff’s examination for discovery. A psychiatric examination should not be ordered simply to allow the defendants to ask the same questions asked in discovery but in a different manner and venue.
[21]         The nature and extent of the plaintiff’s pain disorder and resulting symptoms is revealed in the records and reports of the treating physicians. There is no evidence to suggest that a psychiatrist could offer a “better” diagnosis or prognosis on that condition.
[22]         The facts of this case have many parallels to those discussed in Wocknitz v. Donaldson, 2010 BCSC 1991. As in that case, the defendants do not have the necessary evidentiary foundation to support an order for “this particularly invasive form of examination”: para. 20.

$130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Psychological Injury Cases, ICBC Spine Injury Cases. 44 Comments on $130,000 Non-Pecuniary Assessment for L4/5 Disc Herniation Resulting in Chronic Pain

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an L4-5 disc herniation.
In this week’s case (Bains v. Brar) the Plaintiff was injured in a 2008 collision.  The Defendant admitted fault for the collision.  The crash caused a disc herniation which required a bilateral disectomy.  The Plaintiff was left with chronic pain accompanied with depressive symptoms.   In assessing non-pecuniary damages at $130,000 Mr. Justice Cohen provided the following reasons:
[41]         Before the accident the plaintiff was a happy, healthy, socially and physically active person who enjoyed his work as a machinist and looked forward to one day establishing his own machine shop.  Following the accident, he was a very different person.
[42]         There is a consensus among all of the medical experts that the plaintiff has suffered serious debilitating injuries as a result of the accident and that the chronic pain from his physical injuries has led to him suffering from a major depressive disorder.
[43]         In his September 18, 2012 report, Dr. Sahjpaul stated that the plaintiff will have ongoing symptoms on a permanent basis and that he did not anticipate any resolution or improvement.  He opined that the plaintiff would not return to his pre-accident occupation as a machinist, or be able to work in any vocation that required prolonged sitting, prolonged use of a computer or one that required heavy lifting.
[44]         Dr. L. Caillier, a Physical Medicine and Rehabilitation expert, who saw the plaintiff on November 4, 2010, and in follow-up on January 24, April 8, June 17, August 18, and October 20, 2011, opined in her report dated December 1, 2011, that the plaintiff has chronic pain that is soft tissue in nature, involving the neck, upper back, and lower back regions, as well as his posterior shoulder girdle regions.  She also opined that he has mechanical lower back pain.  She reported, “Unless there is a significant improvement in his emotional and psychological wellbeing as well as his sleep and improved management of his physical symptoms, I do not see Mr. Bains working in any occupation, let alone his prior occupation as a machinist.”  She also concluded in her prognosis, “It is my opinion that given the chronicity of his physical symptoms, coupled with his ongoing psychological and emotional symptoms and poor sleep, the likelihood of Mr. Bains achieving a pain-free state is very poor.  It is my opinion that he is likely to have ongoing pain now and into the future and beyond that of the next 12 months.”
[45]         Dr. Lu, whose opinion I accept, stated in his May 31, 2012 report that the plaintiff’s major depressive disorder, though in partial remission, has long term impact on his future risk of relapse and that even with complete relief of pain and return to his previous level of function, the plaintiff has a prolonged episode of major depression.  Dr. Lu opined that the plaintiff now has at least a 30% chance of a relapse over the next 5 years with similar functional impairment strictly from a mental health standpoint…
[77]         When I consider the nature and extent of the injuries suffered by the plaintiffs in the cited authorities, when compared to those suffered by the plaintiff in the case at bar, I find that a reasonable and fair award to the plaintiff for non-pecuniary damages is $130,000.

BC Court of Appeal Upholds Jury Strike Applicaiton in "Prolonged" Personal Injury Case

Written by admin on . Posted in BCSC Civil Rule 12.

Reasons for judgement were release this week by the BC Court of Appeal upholding a judges decision to strike a jury notice in a complex and prolonged personal injury trial.
In this week’s case (Wallman v. Gill) the Plaintiff alleged that “he suffered serious injuries” in a rear end collision.   The trial was scheduled with “at least 23 experts…as well as some 31 civilian witnesses” and was expected to last 7 weeks.  The Defendants wished to have the trial judge proceed before a jury but a chambers judge struck the jury notice finding the trial was too prolonged and complex for a jury.  In upholding this decision the BC Court of Appeal provided the following reasons:
[7]           The decision to strike a jury notice is a discretionary one that relates to the management of a trial and may not be interfered with lightly on appellate review: MacPherson v. Czaban, 2002 BCCA 518. Absent an error of principle, or failure to give sufficient weight to all relevant considerations, deference must be accorded to such an order.
[8]           The legal test to be applied on review of a discretionary order is whether the judge “has given weight to all relevant considerations”: Mining Watch Canada v. Canada (Minister of Fisheries & Oceans), 2010 SCC 2, [2010] 1 S.C.R. 6 at para. 43. The appellants contend that the chambers judge acted on irrelevant considerations or alternatively failed to apply established legal criteria. With respect, I do not agree.
[9]           In this case, the chambers judge found that the issues for trial will require a scientific investigation. This is a factual determination for which deference must be accorded absent palpable and overriding error, which is not alleged. In the exercise of his discretion, he found that the scientific investigation into the proposed evidence could not conveniently be undertaken by a jury. In reaching that conclusion, the judge was satisfied that a proper review of the evidence and the legal issues could not be ensured by a jury that would be required to understand and retain opinion evidence from a large number of expert witnesses over a protracted period of time…
[13]        These decisions, in addition to many others, demonstrate the type of considerations that must be weighed when faced with an application to strike a jury notice. The management of a proposed civil jury trial requires the judge to ensure, as best as he or she can, that all who are involved, including the parties, their counsel, the potential jurors and the trial judge are able to satisfactorily perform their respective duties and responsibilities in order to meet the common objective of a fair trial.
[14]        In this case, the chambers judge applied the correct legal test under R. 12-6(5) for the striking of a jury notice and in my view cannot be said to have erred in the exercise of his discretion in striking the jury notice in order to ensure the proper conduct and management of the trial of this action. Accordingly, I find no basis upon which this Court might interfere with the order and therefore I would dismiss the appeal.

Private MRI Disbursement Disallowed Due To Lack of Evidence of Urgency

Written by admin on . Posted in Uncategorized.

Adding to this site’s arcived decisions addressing the recovery of private MRI costs as a disbursement, reasons for judgement were released recently by the BC Supreme Court, Victoria Registry, disallowing such a claim.
In the recent case (Cooknell v. Quinn) the parties could not agree on the reasonableness of a variety of disbursement items including a privately funded MRI.  In rejecting this item Master Bouck held that the claim must fail as there was no evidence supporting the need for a privately funded MRI.  Master Bouck provided the following reasons:
[38]         Dealing firstly with the MRI disbursement, the facts of this case are somewhat analogous to those described by then Registrar Blok in Phelan v. Newcombe.
[39]         Although Dr. Smith did recommend an MRI in this case (it is not clear exactly when), there is no explanation offered for proceeding to a private clinic when a publicly funded scan was available — or at least no evidence to suggest that such a process was unavailable. As the MRI charge is disallowed on this basis, I do not need to consider whether such an investigation was necessary or proper.

"Cumulative Effect of Misstatements and Transgressions" Results in Jury Discharge

Written by admin on . Posted in Jury Trials, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Powell River Registry, discharging a jury prior to the conclusion of a personal injury trial.
In this week’s case (Vander Maeden v. Condon) the Defendant objected to a series of “misstatements and transgressions” following the Plaintiff’s final submissions to the Jury.  The Plaintiff argued that there was no need to discharge the jury and proper instructions “could cure any defects in the trial“.  Mr. Justice Gaul held that while some of the misstatements could have been dealt with by proper instructions, their “cumulative effect” was beyond remedy.  In discharging the jury the Court provided the following reasons:
[13]         In my view, the defendants’ application is well founded. Some of Mr. Vander Maeden’s counsel’s statements were of such a nature that they could have been addressed, if necessary, by directions from the court. Informing the jury that it was Mr. Vander Maeden who had asked for a jury trial; suggesting to the jury they should not consider “technical legal arguments”, advising the jury that the defendants had not sought to have their medical expert personally examine Mr. Vander Maeden; and referring to injuries unrelated to the accidents, would, in my view, fall into this category. However, in my respectful opinion, the cumulative effect of all of counsel for Mr. Vander Maeden’s transgressions made it pointless to attempt any corrective instructions or measures, for I do not believe there was anything that could have said that would have, with any degree of confidence, disabused the minds of the jury of the misstatements and misconduct…
[35]         Counsel for Mr. Vander Maeden expressed his “hope” that proper instructions to the jury could cure any defects in the trial or prejudice to the defendants that were caused by his submissions. That hope was understandable, but in the circumstances it was in vain. Although I accept without hesitation that there was no malice or improper design on the part of Mr. Vander Maeden’s counsel, the cumulative effect of his misstatements and transgressions amounts, in my view, to misconduct.
[36]         With great respect for each member of the jury, in my opinion their ability to fairly and impartially perform their role as the triers of fact was irreparably compromised by Mr. Vander Maeden’s counsel’s final submissions.
[37]         In my view counsel for the defendants is correct when he submits the only means of salvaging the trial is to discharge the jury and have the proceeding continue as a judge alone trial. In my view a just, effective and efficient resolution to the situation is for the jury to be discharged, for Mr. Vander Maeden’s counsel to make additional submissions on the issues at trial if he believes they are necessary and then for counsel for the defendants to make his final submissions.

$60,000 Non-Pecuniary Damages For Soft Tissue Injuries Interfering With Infant Care

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for collision related injuries which interfered with a Plaintiff’s ability to breastfeed her infant.
In this week’s case (Mezo v. Malcolm) the Plaintiff was injured in a 2010 rear end collision.  She was three months pregnant at the time.   She suffered a variety of soft tissue injuries which not only made her pregnancy more difficult but also interfered with her ability to care for her newborn with the Court noting that the Plaintiff ” could not comfortably lift her baby or hold her to breast feed. Her neck hurt from bending down over the baby and her headaches returned.”
The plaintiff remained symptomatic at the time of trial and her symptoms were expected to continue into the future.  In assessing non-pecuniary damages at $60,000 Madam Justice Russell provided the following reasons:
[133]     The plaintiff was a young, fit woman at the time of the Accident.
[134]     The plaintiff’s pregnancy at the time of the Accident added to the fear she felt and impacted on her ability to achieve any pain relief. I accept her evidence that she chose to endure the pain rather than risk damage from medication to her unborn child.
[135]     After the baby’s birth, her neck, back and arm pain interfered with her ability to care for her baby. She lost the opportunity to breastfeed her baby after a short period of time. For a conscientious contemporary mother, this was a serious loss.
[136]     Her ability to lift the baby was compromised due to her back and neck pain. One of the joys of motherhood is to hold the infant close. Losing this opportunity is another serious loss. Having her mother enjoy this pleasure no doubt was helpful to the baby’s wellbeing, but it does not replace the disappointment suffered by the plaintiff.
[137]     The athletic lifestyle enjoyed by the plaintiff, Florin, and the plaintiff’s mother is now beyond the ability of the plaintiff due to her injuries. It is all well and good for Dr. Bishop to say that it is likely her pain will increase with more activity but that does not mean re-injury, but the continuing pain does and will interfere with her activities. Not every accident victim is able to ignore pain to the extent Dr. Bishop seems to suggest is desirable.
[138]     I agree with Dr. Adrian that she will continue to suffer some degree of disability for the foreseeable future….
145]     Taking into account the circumstances of this case, I award the plaintiff the amount of $60,000 for non-pecuniary damages.

"Rigid" Expert Evidence Regarding Soft Tissue Injuries Rejected by BC Supreme Court

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

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dismissing ‘rigid’ evidence which downplayed the relationship between lingering symptoms and a motor vehicle collision.
In this week’s case (Mezo v. Malcolm) the Plaintiff suffered a variety of soft tissue injuries in a motor vehicle collision.  These remained symptomatic at the time of trial.  The Defendant hired an independent medical examiner who stated that “all soft tissue injuries heal within 12 to 16 weeks after a motor vehicle accident….the plaintiff’s symptoms outside this time range cannot be soft tissue injuries related to the trauma of the Accident”
In rejecting this ‘rigid’ opinion as unhelpful Madam Justice Russell provided the following reasons:
[114]     I found Dr. Bishop to be rigid in his point of view and unable to do other than say that if the plaintiff’s pain continued long past the 12 to16 month time limit for the healing of soft tissue injuries, the pain could not come from soft tissue injuries. In my view, this begs the question of why the plaintiff continues to suffer pain from activities which place stress on her spine. That her injuries are not objectively demonstrable does not mean she does not suffer pain.
[115]     Dr. Bishop agreed in cross-examination that there can often be soft tissue injuries in patients where the pain endures more than 16 weeks but which are not objectively determinable.
[116]     The plaintiff’s pre-existing low back pain has not been a factor in the injuries stemming from the Accident.
[117]     I did not find Dr. Bishop’s report helpful.