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Defendant Not Liable For Collision Caused By Black Ice

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


Reasons for judgement were released this week by the BC Supreme Court, Chilliwack Registry, discussing the issue of fault for a crash involving black ice.
In this week’s case (Johns v. Friesen) the Plaintiff was a passenger in the Defendant’s vehicle.  The Defendant encountered black ice and lost control of his vehicle.  The Plaintiff was injured in this incident and sued for damages.  The value of the Plaintiff’s case was agreed to leaving the Court to deal only with the issue of fault.  Madam Justice Kloegman ultimately found that the Defendant was not driving negligently and dismissed the Plaintiff’s injury claim.  In doing so the Court provided the following reasons:

[35] In my opinion, this was an unfortunate case of accident that is not attributable to anyone. There is an insufficient evidentiary basis to find that the defendant Friesen was driving below the standard of care of a reasonable, prudent driver. In fact, the evidence established that although it was winter, the driving conditions were good. The Truck and tires were in new and excellent condition. The plaintiff and defendant Friesen were both well-rested. The road conditions were good the day before and that morning, both through Merritt and on the highway. There had been no warnings from any source of black ice. The black ice was invisible, and the defendant Friesen was driving at least 20 kilometers per hour below the speed limit.

[36] The standard of care of a driver in these circumstances is not one of perfection: Hadden v. Lynch, 2008 BCSC 295 at para. 69. The defendant Friesen admitted that he should not have braked, but braking in such a situation is an automatic reflex to try and regain control of a skidding vehicle. The plaintiff did not suggest that this automatic reaction of the defendant Friesen could be the sole foundation for a successful allegation of negligence.

[37] In conclusion, I dismiss the plaintiff’s case as having failed to show on a balance of probabilities that the plaintiff was negligent in the circumstances.

This case, along with the fast approaching winter season, makes this an opportune time to remind passengers injured in single vehicle collisions of the use their statement to ICBC can have on their injury claim.  My previous post addressing this topic can be found here.

$20,000 Non-Pecuniary Damages for "Minor Exacerbation of Pre-Existing Symptoms"

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for the aggravation of pre-existing injuries caused by a so-called Low Velocity Impact.
In today’s case (Pearlman v. Phelps Leasing Ltd.) the Plaintiff, a 77 year old retired lawyer, was involved in a 2007 collision.  He had pre-existing injuries from a 2004 collision and the Court found that these were exacerbated for a short while following the 2007 crash.  The Court expressed serious concern about the Plaintiff’s credibility with the following observation:
[3] The plaintiff’s credibility from the onset of the trial before me through to its conclusion dissipated like aspirin in a glass of water until all that remained was a murky, cloud-like substance. Amongst his many inconsistencies and exaggerations, the most shocking was that the testimony of his injuries in the trial before me was nearly identical to the testimony he gave at the 2008 trial, in which he blamed the 2004 Accident for all the problems he was experiencing in 2008.
Despite this the Court found that the Plaintiff did suffer injury in the 2007 crash.  In assessing non-pecuniary damages at $20,000 Madam Justice Kloegman provided the following comments:
[44] After having reviewed all of the exhibited medical records and reports, and after considering all of the viva voce testimony, it seems fair to conclude, on a balance of probabilities, that it is more likely than not that the plaintiff experienced from the 2007 Accident an exacerbation of his pre-existing symptoms. However, it appears to have been minor and not long in duration. The plaintiff developed no new symptoms. He was back doing physical labour within a few days, and his complaints from that time to the present would likely have continued, regardless of the 2007 Accident. His pre-existing condition was well described by Dr. Baird and Dr. Keyes and there was no reliable, positive evidence to indicate that he developed some further injury of a permanent nature as a result of the 2007 Accident. It is telling, indeed, that the plaintiff’s statement of claim with respect to the 2004 Accident is almost identical to his statement of claim respecting the 2007 Accident…
[47] The case law indicates that a reasonable award of non-pecuniary damages for the plaintiff’s aggravated injury is in the range of $15,000 to $20,000 (Hough v. Wyatt, 2011 BCSC 910; and Dempsey v. Oh, 2011 BCSC 216). It is interesting to note that in both these other cases, the plaintiff was found to be lacking credibility and the Court was obliged to rely on the medical evidence to determine the cause of the plaintiff’s claims of injury. I find myself in a similar position, and on the evidence before me, I award the plaintiff $20,000 in total damages arising from the 2007 Accident.

Future CPP Benefits and ICBC UMP Deductions

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 44 Comments on Future CPP Benefits and ICBC UMP Deductions

Last year an arbitration award was released addressing the deduction of future CPP benefits from an ICBC UMP Claim.
In last year’s case (ME v. ICBC) the 32 year old Claimant was severely injured in a 1997 motor vehicle collision.   She suffered serious brain trauma and as a result “was left functioning at a Grade 7 level in terms of her academics“.  Despite her long term injury the “very ambitious” claimant re-entered the workforce and by the time of her arbitration she had secured full time employment.  Prior to this the Claimant had received CPP benefits totally$78,542.94.  These benefits were terminated with the Plaintiff’s return to work.  It was agreed that ICBC could deduct this prior to paying out on the Claimant’s UMP Claim.
The parties could not agree as to how much more ICBC could deduct given the possibility of future CPP payments.  ICBC argued that the present day value of future CPP benefits should deducted, namely $135,652.  Arbitrator Boskovich found that while such a deduction would be unreasonable a modest deduction should apply to address the reality that the Plaintiff may at some point in the future receive CPP benefits.  Arbitrator Boskovitch reduced ICBC’s UMP payment by just over $20,000 to take this risk into account.  In doing so the following reasons were provided:
102.  I agree with Counsel that the standard of proof to be applied to future hypothetical events is simple probability and not the balance of probabilities.  That being said it remains that the probability, possibility or chance that a future event may occur, in this case the Claimant applying for and receiving CPP disability benefits in relation to her accident injuries, must be a real and substantial one.
103.  In addressing whether or not there is a real and substantial possibility of the Claimant receiving CPP disability benefits in the future one has to consider the relative likelihood of both positive and negative contingencies that might affect the Claimant’s ability to work and the anticipated course with respect to her accident injuries/disabilities…
116.  It has been 13 years since the accident.  2010 will be the first full year of employment the Claimant has maintained since the accident.  To assume the Claimant’s accident injuries, in particular, her very serious brain injury and deficits are going to have no impact on her ability to work to age 65 is unreasonable.
117.  However, it does not automatically mean that the impact translates into a real and substantial risk that the Claimant will face a severe and prolonged mental or physical disability such that she is not substantially gainfully employable as defined in the CPP Legislation.
118.  That is not to say there is no risk whatsoever.  I cannot ignore the concerns outlined by the Claimant’s Mother.  As well, I cannot ignore the evidence of Dr. LeBlanc.  It may be difficult for the Claimant to find jobs over the course of her working life.  Such jobs must have structured routine, few distractions and no multi-tasking.  Her cognitive issues may be aggravated in unfamiliar and stressful situations.
119.  Having regard to all of the evidence, I believe there is a 15% chance or possibility that the Claimant will apply for and receive disability benefits from CPP in connection with her accident injuries.
120.  The parties agree that the present day value of the CPP disability payments to the Claimant’s age 65 is $135,652.00 and, in this regard, the appropriate contingency deduction to be made pursuant to Regulation 148.1(1)(f) is $20,347.80
For more on this topic you can click here to read my summary of the 2008 UMP Arbitration Award in SPW v. ICBC.

Pedestrian Found 30% At fault For Crash for "Cutting the Corner"

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

(Update February 5, 2012 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing fault between a vehicle and a pedestrian.
In last week’s case (Anderson v. Kozniuk) the Plaintiff was crossing a street in an unmarked crossing.  In the course of crossing he “cut the corner” and walked away from the intersection.  He was walking “briskly“.   At the same time the Defendant motorist was travelling south on 12th Street, she “went through the intersection and hit (the Plaintiff)“.

Madam Justice Russell found both parties at fault with the driver shouldering 70% of the blame.  In coming to this conclusion the Court provided the following reasons:

[69]When a driver approaches a crosswalk where she has some degree of knowledge and experience that pedestrians approaching the bus stop or the grocery store may be crossing, she should take the precaution of maintaining a careful look-out and slightly reducing her speed. The very presence of the marked crosswalk should have been an indication to her of the possible presence of pedestrians in the area. Had Ms. Kozniuk taken these steps, it is possible she would have seen the plaintiff before the last second, when it was too late to avoid him.

[70]Her evidence was that her attention was focused directly ahead on the roadway. While the standard required of a driver is not that of perfection, she ought to have been able to glance to the periphery to check that there were no pedestrians in the roadway.

[71]Mr. Anderson also had the obligation to take care for his own safety in his use of the road that morning. Had he crossed in either the lighted crosswalk or within the informal boundaries of the unmarked crosswalk, it is possible Ms. Kozniuk would have seen him. As well, had he remained in the boundaries of the crosswalk, his journey to the curb on the opposite side of the street would have been shorter and he may have been able to avoid the car entirely. By angling across towards the bus stop, as he did, the plaintiff was on the roadway for a longer period of time than he would otherwise have been the case.

[72]By leaving the crosswalk, the plaintiff was also entering a darker area of the street, thus heightening his own risk as a pedestrian that the oncoming driver might fail to see him. He failed to even glance over his shoulder as he left the confines of the crosswalk to locate the car he had earlier noticed approaching from the north on 12th. His awareness of the presence of an approaching vehicle ought to have alerted him to the necessity of checking its proximity to him…

[75]I find that both parties bear fault in this accident. Ms. Kozniuk had reason to look for pedestrians in the area of the crosswalk and the bus stop and she failed to keep a proper lookout. Therefore, her negligence resulted in hitting the plaintiff.

[76]The plaintiff left the relative safety of the crosswalk to jaywalk towards the bus stop at a quick pace on a dark, wet street without looking over his shoulder to locate the oncoming vehicle which he had earlier noticed as he began crossing. The defendant has satisfied me that the plaintiff’s failure to take care for his own safety was a proximate cause of the accident…

[78]In reviewing the cases put before me by counsel, including Karran v. Anderson, 2009 BCSC 1105, Beauchamp v. Shand, 2004 BCSC 272, Wong-Lai v. Ong, 2011 BCSC 1260, I have determined that the relative degrees of blameworthiness should be as follows: 30% to the plaintiff and 70% to the defendant.

$95,000 Non-Pecuniary Damages For Disc Protrusions Requiring Discectomy; Dr. Dommisse Criticized

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

(Image via Wikipedia)
Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, assessing damages for injuries caused by a motor vehicle collision.
In last week’s case (Ng v. Sarkaria) the Plaintiff was injured in a 2007 collision.  The Defendant admitted fault for the crash.  The 31 year old Plaintiff suffered “a large focal disc protrusion at L4-5 and a less significant protrusion at L5-S1“.  As a result the Plaintiff went on to have a partial discectomy.
In assessing non-pecuniary damages at $95,000 Mr. Justice Butler provided the following reasons:
[43] In summary, Mr. Ng has been left with a limitation in the amount of activities he can do.  He has also suffered some restriction in the nature of the activities he can do because he is focused on staying healthy.  He is determined to continue his work as a TFR.  He is not disabled by pain and there is no suggestion that he suffers from chronic pain.  Rather, he has episodic pain when he overexerts himself…

[46] I have found the decisions referred to by the plaintiff to be helpful to my decision.  Of course, each assessment depends on the unique facts of the case.  Here, Mr. Ng’s injury was significant; however, he has had a very positive result from the surgery.  He continues to be able to do all of the activities of his job.  His income has increased to a level greater than it was before the accident.  He must be careful to avoid excessive stress on his back and must carefully balance his work and home life.  However, when I compare his situation to that of the plaintiffs in the cases he relies upon, he is in a better position because he does not experience ongoing chronic pain and is able to continue to carry out most of the activities he could before the accident.  However, I must also take into account the possibility that he will not be able to continue to perform at his current level as a result of the injuries suffered in the accident.  There is a possibility that his pain and restriction of activities will increase in the future.

[47] When I take all of these factors into account, I conclude that the appropriate award for non-pecuniary damages is $95,000.

Prior to reaching this decision the Court heard from competing medical evidence about the connection between the collision to the disc protrusions.  The physician retained by the defence (Dr. Dommisse) provided evidence minimizing this connection arguing the injury was perhaps more likely connected to a work related incident.  In rejecting this opinion Mr. Justice Butler provided the following criticism:
[30] The defence was critical of Dr. Aitken’s alleged failure to fully inquire into the work activities undertaken by Mr. Ng after he went back to work.  However, I am of the view that it is Dr. Dommisse who can be criticized for failing to back up his opinion by pointing to evidence that would connect the Herniations to a particular injury or incident at work.  All of the doctors were aware in general terms of the nature of Mr. Ng’s work.  They all agreed that it is possible for such work to cause a tortional injury to the spine.  However, there was no evidence that Mr. Ng suffered such an injury or insult at work between June 2008 and November 2008.  Indeed, he deliberately avoided the more onerous work tasks including those jobs requiring the use of the large ladder.  He does not recall using the ladder in that timeframe.  During much of that period he was off work, on light duties or avoiding heavy tasks.  The evidence established that there was only one significant injury or insult to Mr. Ng’s spine:  the injury that was suffered in the accident.

Only Two Ways to Get to UMP

Written by admin on . Posted in ICBC UMP Cases, Uncategorized. 99 Comments on Only Two Ways to Get to UMP

An important arbitration decision was released last year demonstrating that there are only two ways to get standing at an UMP arbitration proceeding; either with the consent of ICBC or by having an unsatisfied judgement against the tort feasor.  The case also addresses the effects of a tort release in subsequent UMP proceedings and lastly the consent requirement under s. 148.2(4)(b) of the Insurance (Vehicle) Regulation finding that ICBC needs to demonstrate real prejudice to rely on this section.
In last year’s case (GG v. ICBC) the Claimant was injured in a Washington State motor vehicle collision.  The at fault motorist had very low third party liability coverage and likely was underinsured for the circumstances.  The Claimant had Underinsured Motorist Protection (UMP) with ICBC.
The Claimant sued in Washington State and the at fault motorist admitted liability.   Since the Washington State court award would not be binding on ICBC regarding the value of the claim the Claimant sought ICBC’s permission to settle for policy limits and proceed to UMP arbitration to determine the value over and above this amount that would be payable.  ICBC would not consent to this.  The Claimant settled his claim and started an UMP proceeding.  ICBC challenged this arguing the Claimant did not have standing to do so.  Arbitrator Yule agreed finding there are only two ways to get standing in an UMP Claim. In dismissing the claim Arbitrator Yule provided the following reasons:
37.  The essence of the dispute between the parties regarding the entitlement issue is whether there is a “third way” for a Claimant to establish the right to proceed to arbitration.  ICBC says there are only two ways to establish that right, namely (1) an unsatisfied judgement against the tortfeasor or (2) the consent of ICBC.  The Claimant says there is a third way, namely, by admissions of the tortfeasor, both as to fault for the accident (legal liability and legal entitlement) and as to an inability to satisfy any damages that may be awarded…The Claimant asserts that in this case compelling him to obtain judgement in the Washington State action is unfair, particularly having in mind the uselessness of an assessment of damages under Washington State law.  I agree.  However, in light of the legal authorities, I am constrained to conclude that the Claimant is not entitled to UMP compensation because he has not established the necessary prerequisites.
This finding was fatal in and of itself to the Claim, however, Arbitrator Yule also addressed the effects of a full and final release as against the tort-feasor.  When the Claimant settled with the at fault driver the typical release was signed.  Arbitrator Yule found that signing this release absent ICBC’s consent compromised the Claimant’s rights to an UMP Claim and provided the following reasons:
61.  Accordingly, I am constrained to find that in the absence of the agreement of ICBC that the claimant may do so and still proceed to an arbitration of his UMP Claim, the entry of a Consent Dismissal Order in the Washington action and the provision of a Full and Final Release of SK mean that the claimant is no longer legally entitled to recover damages from SK and there is no “excess” damages that could be the subject of an UMP Claim.  Hence, the claimant is not entitled to advance an UMP claim now.

More on ICBC Settlements and Consent

Written by admin on . Posted in Settlement Law. 74 Comments on More on ICBC Settlements and Consent


Further to my previous posts on this topic, if a lawyer accepts an ICBC offer without clear client instructions a binding settlement could be created leaving the remedy of a separate claim against the lawyer in negligence.  Reasons for judgement were released last week by the BC Supreme Court, New Westminster Registry, dealing with this area of the law.
In last week’s case (Ng v. Schell) the Plaintiff was injured in a 2007 motor vehicle collision.  She retained a lawyer who allegedly entered into a settlement agreement for $95,000 plus taxable costs and disbursements.  The client apparently did not give instructions to accept such an offer.
The client retained new counsel and attempted to proceed to trial.  ICBC brought a motion to dismiss the lawsuit arguing a binding settlement had been reached.  Ultimately Madam Justice Maisonville declined to determine the issue in a Chambers Application and ordered that the matter proceed to trial so that the former lawyer could be subpoenaed and give evidence as to what occurred.  Prior to disposing of the matter the Court provided the following summary of the relevant legal principles:

[8] Both counsel agree that in a situation where a judgment has been rendered, normal rules of contract and agency are applicable.  However, in an interlocutory matter, such as here, where there is not yet a judgment, then the situation must fall into one of the four exceptions outlined in Hawitt for the court to have discretion to deny the application to order the settlement valid and enforceable and stay the proceeding.  Those four notable exceptions are set out in Hawitt at paragraph 20:

20  The judge may refuse the stay if:

1.   there was a limitation on the instructions of the solicitor known to the opposite party;

2.   there was a misapprehension by the solicitor making the settlement of the instructions of the client or of the facts of a type that would result in injustice or make it unreasonable or unfair to enforce the settlement;

3.   there was fraud or collusion;

4.   there was an issue to be tried as to whether there was such a limitation, misapprehension, fraud or collusion in relation to the settlement.

[9] The first analysis, of course, is whether the previous solicitor was acting on instructions.  One of the leading cases in British Columbia is that of Smoliak v. Smart (Guardian ad litem of), [1995] B.C.J. No. 1559 (S.C.) where, at para. 17, Drake J. held:

17  Solicitors, of course, are agents of their clients in accordance with the terms of their retainers; and when retained to conduct litigation have the authority to compromise and settle an action brought for a client.

[10] It is settled law that a solicitor has authority to enter into settlement agreements as agent for the client in such circumstances and that if there is any restriction on that authority, notice must be given to the other side of such a want of authority.  Otherwise, in the absence of the other side being aware the authority was limited or restricted, the opposing side is entitled to rely upon the authority to settle.  The only exceptions, accordingly, in a situation where there appears to be authority to settle are the above exceptions from Hawitt.

As a practical matter these types of disputes can be avoided if settlement instructions are provided in writing, or, better yet, by clearly communicating in the course of negotiations that binding settlement will be made subject to clients confirming instructions evidenced by a signed full and final release.

BC Sexual Abuse Civil Cases and the Law of "Indivisible Injury"

Written by admin on . Posted in Sexual Assault Civil Cases, Uncategorized.

As previously discussed, the law of damages in BC has developed as follows with respect to indivisible injury compensation:
[55] Indivisible injuries are those that cannot be separated, such as aggravation or exacerbation of an earlier injury, an injury to the same area of the body, or global symptoms that are impossible to separate: Bradley, at para. 20; see also Athey, at paras. 22-25.

[56] If the injuries are indivisible, the court must apply the “but for” test in respect of the defendant’s act. Even though there may be several tortuous or non-tortuous causes of injury, so long as the defendant’s act is a cause, the defendant is fully liable for that damage: Bradley, at paras. 32-37; see also Resurfice Corp. v. Hanke, 2007 SCC 7 at paras. 19-23.

This principle becomes particularly important with respect to civil sexual abuse claims.  The sad reality is that many abused people are repeat victims with a number of different wrongdoers taking advantage of them.  If this is the case, and if the overall harm caused by the abuse is “indivisible” then the victim can collect their damages for the whole of the indivisible injury from any one of their perpetrators.  This principle was demonstrated in reasons for judgment released this week by the BC Supreme Court, Victoria Registry.
In this week’s case (Corfield v. Shaw) the Plaintiff was the victim of childhood sexual abuse at the hands of her stepfather.  The abuse was “egregious and prolonged“.  Later she was the victim of sexual abuse at work.  The latter abuse was of a less severe character.  She sued for damages as a result of the workplace abuse.  The Defendant was ultimately found liable.
The Defendant argued that the damages should be modest because the Plaintiff “was still experiencing emotional and psychological difficulties from the Childhood abuse” and that these consequences “would have continued thereafter even without Mr. Shaw’s wrongful actions“.  Mr. Justice Butler rejected this argument and assessed damages on an indivisible basis.  In doing so the Court provided the following reasons:

[101] There is no question that the nature of the emotional and psychological injuries she suffered as a result of the Childhood Abuse is similar to, if not the same as, what she has experienced since the Assaults.  Any attempt to divide those injuries into causes as between the two tortfeasors would be artificial.  There was no evidence proffered which would allow me to conclude that some of the symptoms or emotional difficulties suffered by Ms. Corfield since 2005 were caused solely by the Childhood Abuse.  Accordingly, I conclude that all of Ms. Corfield’s emotional and psychological difficulties since 2005 were caused or contributed to by the Assaults.  In other words, the injuries she has suffered from since 2005 are indivisible from those injuries suffered from the Childhood Abuse.

[102] In reaching that conclusion, I am not suggesting that the Assaults were the only cause of her injuries, just that her “damage and loss has been caused by the fault of two or more persons”, one of whom is Mr. Shaw.  As a result, in accordance with the provisions of s. 4 of the Negligence Act, R.S.B.C. 1996, c. 333, Mr. Shaw is jointly and severally liable for the injuries suffered since the Assaults, and he is responsible for the full cost of loss and damage suffered since the Assaults subject to consideration of the crumbling skull principle.

[103] The difference between a thin skull and a crumbling skull is described in Athey at paras. 34 and 35:

… The “crumbling skull” doctrine is an awkward label for a fairly simple idea.  It is named after the well-known “thin skull” rule, which makes the tortfeasor liable for the plaintiff’s injuries even if the injuries are unexpectedly severe owing to a pre-existing condition. The tortfeasor must take his or her victim as the tortfeasor finds the victim, and is therefore liable even though the plaintiff’s losses are more dramatic than they would be for the average person.

The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”.

[104] One aspect of Ms. Corfield’s “original position” was described by Dr. Bruce; she was “more vulnerable to experience a more intense emotional affect from stressful events”.  In other words, she was fragile and susceptible to suffering emotional damage.  There is no question that this condition falls within the “crumbling skull” category.  Ms. Corfield continues to have that susceptibility and Mr. Shaw does not have to compensate her for continuing vulnerability.

[105] However, the defendants also argue that Ms. Corfield was still experiencing emotional and psychological difficulties from the Childhood Abuse before she was assaulted by Mr. Shaw.  They say the symptoms she suffered from included anxiety, depression, poor sleep, nightmares, alcohol abuse and other symptoms.  The evidence of Ms. Corfield’s mother provides some support for this position.  Ms. Corfield herself said that she “felt herself fairly recovered” from the Childhood Abuse.  I take this to mean that she was doing reasonably well but had not fully recovered.  In cross-examination she admitted that her doctor recommended she attend counselling in 2003 and 2004.  This confirms that in the two years before she started working at Baker Industries she was experiencing emotional difficulties.  She also admitted to continuing intimacy problems arising from the Childhood Abuse…

[116] In these circumstances, an appropriate award for non-pecuniary damages including the aggravating circumstances is $70,000.  This must be reduced to take into account Ms. Corfield’s pre-existing condition.  A deduction of 15% results in an assessment of $59,500.  I will round that up and award the sum of $60,000 for non-pecuniary damages.

Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"

Written by admin on . Posted in BCSC Civil Rule 7, ICBC Privacy Issues, Uncategorized. 56 Comments on Social Media and Computer Hard Drive Requests "A fishing expedition…without the appropriate bait"


Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, dismissing a defendant application requesting the production of a Plaintiff’s Facebook postings, Twitter postings, Computer Hard Drive and Iphone.
Today’s case (Dosanjh v. Leblanc and St. Paul’s Hospital) involved allegations of medical malpractice.  The plaintiff said she suffered “cognitive impairment that has affected her thinking process“.  She sued for damages.  The Defendants brought an application seeking that the Plaintiff produce her private social media account information and computer hard-drive data arguing that this information would be relevant to the claimed damages.  Master Taylor dismissed the application finding such a broad application, even in the face of alleged cognitive injuries, was “a classic fishing expedition, but without the appropriate bait.“.  Master Taylor provided the following reasons:

[28] The defendant has not indicated the material fact or facts which it believes can be proved by searching the plaintiff’s personal computer and her social media sites.  Rather, the defendant merely says that health, enjoyment of life and employability are in issue.  Surely more is or should be required to meet the test of Rule 7-1(1)(a)(i) than just saying a particular matter is in issue in order to infringe on a litigant’s privacy.

[29] To be able to obtain a litigant’s private thoughts and feelings as expressed to friends or family members after the fact is, in my view, similar to a party intercepting private communications of another party.

[30] I am unable to envisage any rational justification for breaching the privacy rights of an individual in civil proceedings simply because it is alleged that the individual’s general health, enjoyment of life and employability are directly at issue.  Merely because a record may be made of the communication shouldn’t make it any different than a private telephone conversation.  If not, surely applications in civil proceedings for recordings of private communications can’t be far behind…

[33] I am satisfied that the defendant’s application is entirely too broad and lacks the focus required by Rule 7-1(1)(a)(i).  In fact, I am more inclined to call this application a classic fishing expedition, but without the appropriate bait.  I observe as well that the order made by the court in Bishop, supra, was focussed on the times the plaintiff spent on his Facebook account on his computer, and did not give the defendant cart blanche to troll through the plaintiff’s correspondence as is sought in the application before me.

Should the Rules of Court Be Flexible for Treating Physicians?

Written by admin on . Posted in BCSC Civil Rule 11, independent medical exams, Uncategorized. 1 Comment on Should the Rules of Court Be Flexible for Treating Physicians?

(The Below article was first published yesterday at Slaw)
There are two types of expert medical witnesses in personal injury cases; treating physicians and ‘professional‘ witnesses.  I don’t note this with any criticism of the latter category but simply point out that often doctors are brought to Court (by both Plaintiffs and Defendants) to act as independent medical experts to provide opinion evidence.  These professional witnesses often have no role in treating an injured plaintiff.
The BC Supreme Court Rules have strict requirements for expert opinion evidence.  These Rules are applied with equal rigour to both categories of experts.   ‘Professional‘ witnesses  often have little difficulty producing reports which comply with the strict requirements of Rule 11-6.  Treating physicians, on the other hand, often have crucial evidence to share and their opinions are highly valued but they sometimes struggle with the technical requirements of the rules of court.
Treating physicians often want little to do with the Court and have little experience with the nuances of writing reports that meet the rules of evidence.  When asked to author medico-legal reports many are reluctant to do so in the first place and when they do the reports are not slick, polished or necessarily compliant with all of Rule 11’s requirements.
This lack of compliance can risk treating experts’ reports being excluded from evidence.  While the Rules of Court provide judges with discretion to allow expert evidence to be admitted even if technically non-compliant with the Rules of Court “if the interests of justice require it“, this threshold often will not be met by explanation of witness inexperience with the Rules of Court.
New York personal injury lawyer Eric Turkewitz raised the following concern in response to judicial scrutiny of treating doctor reports in his jurisdiction:
New York’s No-Fault law is out of control. It seems to have reached the point where judges are almost demanding one of two things from injured patients: That their doctors get legal tutoring on how to write reports that will satisfy the judiciary, or alternatively, that injured patients seek treatment from only those doctors that already know how to write medical-legal reports.
As was illustrated in the recent BC decision of Milliken v. Rowe, a treating expert is perhaps the most desirable witness for a trier of fact to hear from when it comes to addressing a Plaintiff’s injuries.  Appreciating this, can a balance be struck holding these experts to a more flexible standard when providing a Court with opinion evidence?  Should the Rules be amended to create different standards for treating doctors versus professional witnesses?  Thoughts and feedback are appreciated.