Tag: bc injury law

A Tale of Two Accidents: More on the Importance of Independent Witnesses

Written by admin on June 29, 2011. Posted in ICBC Liability (fault) Cases, Uncategorized.

As previously discussed, where motorists have different versions of events following a collision the evidence of independent witnesses can be crucial in addressing the issue of fault. Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Chang v. Alcuaz) the Plaintiff was involved in a two vehicle collision in 2008. As she was travelling Eastbound on 33rd Avenue her vehicle was struck as she crossed Main Street. The Defendant was travelling Southbound on Main Street at the time the vehicles collided.

The impact was severe with the plaintiff testifying that as she approached the intersection “she recalled that the colour of the traffic light was green” and that “she has no other recollection of the accident. Her next memory is of waking up two days later in the hospital.”
The Defendant disputed this version and gave evidence that he had the green light. Mr. Justice McEwan ultimately preferred the Defendant’s evidence and dismissed the Plaintiff’s claim. In reaching this conclusion the Court placed significant weight on the evidence of two independent witnesses who saw the collision. Mr. Justice McEwan provided the following reasons for judgement:
[28] The evidence in this case is contradictory and unreliable in many of its details. It is often difficult, in cases of this kind, to put much reliance on estimates of time and distance given by witnesses in connection with a surprising and traumatic event…

[29] Liability comes down to two questions:

(1) who had the benefit of the light, and

(2) was the operator of the vehicle with the benefit of the light, nonetheless responsible to some degree, in the circumstances.

[30] Respecting the first question, there is reason to doubt the plaintiff’s assertion that she had the benefit of a green light as she now asserts. She was unconscious following the accident and her original statement is at odds with what she presently says. It would be difficult to accept her version of the event without corroboration.

[31] The assistance offered by the witness, Ms. Currimbhoy, is highly debatable. She, alone, among the witnesses, suggests that the event happened in daylight. On a common sense basis, as I have indicated, she could not be right about her proximity to the plaintiff at the time of the collision. There is also the difficulty that none of the other witnesses saw any other vehicle proximate to the collision. There is a further difficulty posed by Mr. Humphrey’s flatly stated observation that he saw the woman who identified herself as a co-worker pull up after the collision. It is not conclusively established that that was the same person, but it is telling that neither Mr. Jantzen, nor Mr. Humphrey, who observed the entire incident, noted any other vehicle near the scene.

[32] The defendant, Mr. Jantzen and Mr. Humphrey all say firmly that the defendant had the benefit of the green light when he entered the intersection. Mr. Jantzen’s impression that the defendant may have been “timing” the light is borne out in the defendant’s description of what occurred, in that he says he slowed and then accelerated when he saw the light turn green.

[33] The evidence from the City of Vancouver respecting the timing of the lights that day at that intersection is also useful. If the light was turning, an eastbound driver had 3.5 seconds of an amber light before the change. For 1.5 seconds traffic in all directions is governed by a red light. This means that by the time the light turns to green, eastbound traffic, at any reasonable speed, has had a warning and ample time to stop.

[34] The scenario posted by the plaintiff that the light was green or green turning amber as she hit the intersection would imply a red light north and southbound that continued for five seconds after the defendant entered the intersection. This would preclude any impression of the defendant “timing” the light because he would have entered fully on red. That is not in accordance with the observation of Mr. Jantzen or of his passenger, Mr. Humphrey. Both were credible and balanced witnesses who were not caught up in the event themselves except to witness it. Mr. Jantzen, in particular, was paying specific attention to the light because he had been waiting for it to change. His view was unobstructed.

[35] I am satisfied, on the basis of a consideration of all the evidence, that at the time the collision occurred the defendant had the benefit of the green light and that the plaintiff should not have been in the intersection when the collision occurred.

This case is also worth reviewing for the Court’s discussion of fault for motorists who “time a green light“. The Plaintiff argued that if she did run a red light the Defendant was partially to blame because he timed his green light. Mr. Justice McEwan dismissed this argument but in doing so provided a useful overview of the law at paragraphs 36-46 of the reasons for judgement.

Deposition Applications Under the New Rules of Court

Written by admin on June 29, 2011. Posted in BCSC Civil Rule 7, Uncategorized. 56 Comments on Deposition Applications Under the New Rules of Court

Earlier this year Mr. Justice Harris provided reasons in obiter setting out some concerns as to why parties should limit the use of deposition evidence at trial. This week, reasons for judgement were released considering a contested application for a witness to testify by way pre trial deposition. This is the first reported case I’m aware of dealing with such an application under the new Rules of Court.
In this week’s case (Seder v. ICBC) the Plaintiff was injured in a motor vehicle collision. ICBC spoke with the Plaintiff’s employer and wished to call her as a witness at trial. The employer lived in Alberta so ICBC asked for permission to conduct a pre-trial deposition and introduce that evidence at trial. The Plaintiff opposed this but was willing to accommodate the witness by allowing her to testify via video-link. ICBC did not agree to this compromise and brought an application for an order requiring the witness to attend a deposition.
Master Young dismissed ICBC’s application but did give the witness permission to testify via video-conferencing. In doing so the Court provided the following reasons:

[3] In determining whether to exercise its discretion to order an examination under subrule (1), the court must take into account:

(a) the convenience of the person sought to be examined,

(b) the possibility that the person may be unavailable to testify at the trial by reason of death, infirmity, sickness or absence,

(c) the possibility that the person will be beyond the jurisdiction of the court at the time of the trial,

(d) the possibility and desirability of having the person testify at trial by video conferencing or other electronic means, and

(e) the expense of bringing the person to the trial.

[4] The former Rule 38 is essentially the same rule as the new Rule 7-8, with the exception that a new ground has been included at 7-8(3)(d) regarding the possibility of testifying at trial by video conferencing…

[5] In Abermin Corp. v. Granges Exploration Ltd., [1990] B.C.J. No. 1830, Mr. Justice McColl discussed the purpose and intent of Rule 38 shortly after it was incorporated into the Rules. The Rule, he said, is attempting to strike a balance between the fundamental principle that witnesses should testify live before the court and the preservation of evidence which might not be available at trial because it is not always possible to get witnesses, willingly or otherwise, before the courts. His Lordship said that Rule 38 intended to provide the parties with the opportunity to preserve and present evidence when there is a possibility that a witness would not otherwise be heard and thus adversely affect one of the litigants at trial. The emphasis was on the availability of the evidence, not the convenience of counsel.

[6] The mischief to avoid in interpreting the Rule, is that trial would become a “hodge-podge of deposition evidence along with viva voce evidence in the conduct of a trial merely to convenience counsel or indeed potential witnesses” (Abermin at p. 3)…

[33] Ms. Jacob is not a central witness. She is being called to give brief evidence relating to loss of earnings. It is not proportionate to pay three days’ travel expenses to have her testify for an hour and fly home the same day. This travel expense could be avoided by permitting her to attend at the trial by video conference. She is a cooperative witness, but out of an abundance of caution the third party still intends to subpoena her. The cost of the applications cannot be avoided if the third party wants to ensure her attendance. That cost would be incurred whether she attended for a deposition or for a trial.

[34] I have to keep in mind the problems with preparing defence evidence prior to the trial without a judge presiding, as articulated by Justice Harris in Byer. It strikes me that these problems which interfere with the effectiveness and usefulness of the evidence at trial should only be ordered in exceptional circumstances where the evidence will be lost if not recorded prior to trial.

[35] In cases such as this case before me with the most unexceptional facts, the proportionate procedure would be video conferencing.

[36] I dismiss the third party’s application.

Is an Unentered BC Supreme Court Order Effective?

Written by admin on June 27, 2011. Posted in Civil Procedure, Uncategorized.

After a BC Supreme Court Judge or Master makes an Order, the parties to the lawsuit typically agree to the order’s terms, reduce it to writing, sign it and enter it with the Court Registry. Can an order be effective if parties fail to take these usual steps? The answer is yes and Reasons for Judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this area of the law.
In this week’s case (Hable v. Hable) the parties were involved in a family law dispute. In the course of the lawsuit a Court Order was obtained. The order was never entered and the lawsuit was eventually discontinued. After this the parties could not agree as to whether the unentered order was effective and the Court was asked to address this issue. The respondent argued that the order could not be entred because the underlying lawsuit was discontinued. The Court disagreed and in finding that the order was valid and effective Mr. Justice Bowden provided the following helpful reasons:

[7] The law in British Columbia regarding the effect of an order that has not been entered, as found in Metro Trust Co. of Can. v. MacDonald, (1988) CanLII 3025 (B.C.S.C.), is that it is “provisionally effective and can be treated as a subsisting order in cases where the justice of the case requires it and the right of withdrawal would not be thereby prevented or prejudiced.” That view of the law reflects an earlier decision of the B.C. Court of Appeal in Allard v. Manahan, [1974] B.C.J. No. 933, where the Court of Appeal said at para 10:

What is meant by the statement that an unentered order is only “provisionally effective”? I think that it means that the Judge who made it may, in his discretion, alter it or set it aside.

[8] A superior court is not functus officio with respect to an unentered order. (Clayton v. British American Securities Ltd., [1935] 1 D.L.R. 432 (B.C.C.A.). Unlike the dismissal of an action, which is a final order, a discontinuance leaves matters open and is not a bar to further proceedings. (Chrétien v. Canada (Attorney General), 2005 FC 925 (Federal Court) and Davis v. Campbell (1986), 54 O.R. (2d) 443 (H.C.)

[9] I have concluded that the discontinuance filed in this matter does not preclude me from signing and entering the Order without the signatures of counsel. By doing so, I am simply confirming an order which was made prior to the filing of a discontinuance. Either party is at liberty to apply to settle the order before me or the Registrar, provided that such application is made before July 16, 2011. If no application is made by that date, the Order will be entered.

$50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Written by admin on June 24, 2011. Posted in ICBC Fibromyalgia Cases, Uncategorized. 59 Comments on $50,000 Non-Pecuniary Damages for "Sustained and Prolonged" Exacerbation of Fibromyalgia

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing an assessment of damages for an aggravation of pre-existing injuries.
In today’s case (Iwanik v. Hayes) the Plaintiff was involved in a 2008 intersection collision. She was 61 years old at the time. Fault for the crash was admitted by the opposing motorist. The trial focused on the quantum of damages (value of the claim).
Prior to the collision the Plaintiff had various health concerns including fibromyalgia. The collision caused, among other injuries, a “sustained and prolonged” exacerbation of her pre-existing condition. In valuing the non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $50,000 Madam Justice Gray provided the following reasons:

[132] As a result of the accident, Ms. Iwanik suffered soft tissue injuries to her neck, thorax and lumbar spine, causing a prolonged and sustained exacerbation of her fibromyalgia, and causing intermittent headaches. If the accident had not occurred, her fibromyalgia would have flared up periodically, but not enough to have restricted her from her from work or her other activities.

[133] As a result of the accident, Ms. Iwanik also suffered an injury to her left knee, which caused patellofemoral pain syndrome. It may have caused other problems in her knee, but the evidence at trial did not establish anything further. Although there is no record of Ms. Iwanik reporting the knee pain to treatment providers until August, 2008, I accept her evidence that she was initially more focussed on her other pain, and thought that the knee pain would resolve.

[134] I accept Dr. Bridger’s opinion that Ms. Iwanik also suffered a probable minor compression fracture of her T12 vertebra, and that she suffered a minor head injury with a probable minor concussion which has resolved. However, both of those injuries resolved so quickly that they do not affect the assessment of damages in this case.

[135] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to work at a physically demanding job, and is not capable of working in a 7-Eleven store. Fortunately, Ms. Iwanik found work at a Husky gas station which can accommodate her abilities. However, the job is not as well-paid as her work as a manager at 7-Eleven, and does not offer opportunities for advancement.

[136] As a result of the injuries she suffered in the accident, Ms. Iwanik is no longer able to engage in hour-long walks, or to carry heavy items such as laundry and groceries, or to garden for more than 20 minutes at a time in an elevated garden bed. She is no longer able to contribute to her family and community to the extent she previously did….

[142] In all the circumstances, an appropriate award is $50,000.

Trial Management Conferences and the Attendance Requirement

Written by admin on June 23, 2011. Posted in BCSC Civil Rule 12, BCSC Civil Rule 23, Uncategorized. 113 Comments on Trial Management Conferences and the Attendance Requirement

The first published reasons for judgement addressing Trial Management Conference attendance requirements pursuant to Rule 12-2(4) were released this week on the BC Supreme Court website.
In this week’s case (Luis v. Haw) the Plaintiff was involved in 4 separate motor vehicle collisions. A lawsuit was started following each collision and these were set for trial at the same time. All the Defendants were apparently insured with ICBC.
As the Trial Management Conference neared ICBC made an application requesting that “(the personal) defendants are exempt from attending the trial management conference; secondly, that Mr. Kevin Munt, who appears to be an adjuster at the Insurance Corporation of British Columbia, “represent” the defendants at the trial management conference, and that Kevin Munt be allowed to attend the trial management conference by telephone“.
The Court largely dismissed the application and in doing so Mr. Justice Groves provided the following useful comments about the attendance requirement for Trial Management Conferences:

[19] The first concern raised by the letter and the requisition is the request that Kevin Munt “represent” the defendants at the trial management conference. That is the language in the requisition.

[20] If this is a request for Kevin Munt, who is an adjuster, to appear and that counsel not appear, that is completely inappropriate. Trial management conferences are significant and they are a significant change to the rules. They are mandatory and no trial certificate is issued without the parties attending. Though interlocutory, trial management conferences cannot be done by Masters, who do not hear trials. In my view, this suggests the drafters of the rules have placed significant emphasis on the requirement of trial management conferences.

[21] Noting that, I also then note that there are a number of matters that can be discussed at trial management conferences, as set out in subrule 12?2(9), that require legal analysis and are clearly not within the knowledge of an adjuster representing an insurance company. These include: (a) a plan as to how the trial was to be conducted; (c) amendments to pleadings within a fixed time; (d) admissions of fact at trial; (e) admission of documents at trial; (i) respecting experts’ reports and issues dealing with experts’ reports; (l) an adjournment of trial; and (m) directing the number of days reserved for trial to be changed.

[22] Without even considering the clear requirement that people are represented in court by counsel or by themselves, it is, from my reading of what is to transpire at a trial management conference, completely inappropriate to suggest that when a defendant has counsel, that someone else, in this case an adjuster, appear essentially as counsel at a trial management conference. It is impossible to imagine how the requirements of a trial management conference can be accomplished by an adjuster appearing on behalf of the defendants, as may be the request in this requisition.

[23] If, however, this is a request that the adjuster attend in substitution of the mandatory requirement of the defendants’ attendance, that is governed by Rule 12?2(5).

[24] Rule 12?2(5) clearly contemplates a circumstance, which may be present here, which is that an individual who has full authority to make decisions for a party in the action or an individual who has ready access to the person or group of persons who collectively have full authority to make decisions for a party to an action can attend in place of a party. It appears from the evidence before me that Kevin Munt may fall into this category. I will say, however, that it is not appropriate for an adjuster to attend on behalf of defendants, unless he or she has the real authority to make decisions for the defendants. It is not good enough to say, as has been said before me, “That exceeds my current authority”, “I have to go back to the committee and they won’t be meeting for another week”.

[25] That, in my view, defeats the whole purpose of Rule 12?2(5). Ready access, the words in the rule, means really that the adjuster has to have either authority to make decisions or the ability, while the court stands down, to make a phone call to get the instructions he requires to properly speak for the defendant at the trial management conference.

[26] This lack of authority cannot be used as an excuse that prohibits the proper conduct of court actions at trial management conferences, when it is such a representation that allows the representative of the defendant to attend in the first place. Clearly the rule contemplates letting those who represent defendants, such as insurance adjusters, attend in the place of defendants. Insurers may wish to not require their defendants to personally attend. I do note however that there appears to be an increasingly internal requirement that defendants attend at trial, even when liability is not at issue. The adjuster who does attend must have the ability to deal with all matters or have ready, immediate access to those who can so instruct…

[33] In conclusion, if the suggestion in this requisition is that Kevin Munt attend on behalf of the defendants, he is not counsel, he cannot attend without counsel.

[34] If this is a request that Kevin Munt attend in the place of the defendants themselves, which is permissible under the trial management conference rule, then I am satisfied, if Kevin Munt has the real authority or has ready access, and by that, immediate access to those who have authority, then he can attend pursuant to Rule 12?2(5).

This decision is also worth reviewing for Mr. Justice Groves discussion of Rule 23-5 and the circumstances when the Court should allow a party to attend a Court Proceeding via telephone.

$28,000 Non-Pecuniary Damages Assessment for Patellofemoral Pain

Written by admin on June 20, 2011. Posted in ICBC Knee Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for an accident related knee injury.
In this week’s case (Battagliola v. Wal-Mart Canada Corp.) the Plaintiff was shopping in Wal-Mart in 2005 when a metal shelf struck her right knee. Wal-Mart accepted that they were liable for the incident leaving only quantum of damages (value of the claim) at issue.
The Plaintiff suffered pain and discomfort in her knee following the incident and was diagnosed with patellofemoral pain (knee joint pain). The symptoms lasted up until the time of trial but were expected to “slowly resolve over time“.
The Court accepted the injury was caused by the incident although expressed concerns that “the negative impacts are not quite as debilitating as asserted” and further that the Plaintiff’s “current limitations are not as severe as her personal account suggests“. Non-Pecuniary damages (money for pain and suffering and loss of enjoyment of life) were assessed at $28,000. In reaching this assessment Mr. Justice Masuhara provided the following reasons:
[19] Dr. Pisesky opined in his report that Ms. Battagliola suffers from patellofemoral syndrome of the right knee and that the pain associated was brought about directly by the contusion to her right knee on February 15, 2005….
[22] He opined that Ms. Battagliola “will likely have some degree of discomfort in [her right] leg and findings associated with this of patellofemoral irritation indefinitely.” …
[25] The report of Dr. White concluded that upon his examination, Ms. Battagliola “probably had a blow and bruise to the right patella area in the indeterminate past.” Based on the information he had as of the date of his report, he stated that Ms. Battagliola’s knee injury “should slowly resolve over time but may take a while yet.”…
[33] In considering the circumstances of this case, the age of Ms. Battagliola; the period of time over which her condition has continued; the medical evidence of Dr. Pisesky that symptoms will continue on indefinitely but that they can be controlled to a certain extent by his recommendations and that there should be a noticeable benefit with orthotics; and my finding that her pain is not as debilitating as indicated in the plaintiff’s case, I assess non-pecuniary damages as $28,000.

Case Planning Conferences Not Necessary to Get CPC Consent Order

Written by admin on June 17, 2011. Posted in BCSC Civil Rule 1, BCSC Civil Rule 5, BCSC Civil Rule 8.

Useful reasons for judgement were released yesterday (Stockbrugger v. Bigney) by the BC Supreme Court, Vancouver Registry, finding that parties can apply for a Case Planning Conference Order by consent even if they have not had a Case Planning Conference. While such a power is not set out expressly in the Rules of Court Mr. Justice Macaulay relied on the principle of proportionality to justify this result. The Court provide the following helpful reasons:

[2] Even though the Supreme Court Civil Rules do not expressly provide for consent case plan orders, permitting the parties to file a consent case plan order is not prohibited and is entirely consistent with the object of the rules to secure the just, speedy and inexpensive determination of every proceeding on its merits (Rule 1?3(1)). Further, under sub-rule (2), the object is to be achieved, “so far as is practicable,” by conducting the proceedings in a proportionate manner.

[3] It is important, in considering proportionality, to keep in mind that every court appearance adds a layer of cost for the litigants. Part 5 of the rules, which governs case planning conferences, recognizes this factor. It does not require a case planning conference in every proceeding. In short, the parties may conduct a proceeding entirely without a case plan order if they so choose and the court finds no basis upon which to intervene and direct that a case planning conference take place.

[4] The foregoing is evident from Rule 5-1(1) which permits any party of record to request a case planning conference and Rule 5-1(2) which permits the court, any time after the pleading period has expired, to direct that a case planning conference take place. I see no reason for refusing parties the opportunity to consent to a proposed case plan without adding the cost of what may well be an entirely unnecessary hearing.

[5] Nothing in the rules prohibits a consent case plan order. If a party requests, or the court directs, that a case planning conference take place, Rule 5-3(3) requires that the judge or master conducting the case planning conference “must, at the conclusion of the case planning conference, make a case plan order.” I do not interpret that sub-rule as excluding a consent case plan order absent a case planning conference.

[6] Further, Rule 8-3 governs applications for orders by consent. An application for an order by consent, in the ordinary course, is made by filing a requisition, a draft of the proposed order and evidence that the application is consented to (Rule 8?3(1)(a)-(c)). Sub-rule (2) provides that a registrar may, upon being satisfied that the application is by consent and the appropriate materials filed, refer the application to a judge or master, depending on the jurisdiction necessary to make the particular order. Rule 8-3 does not give rise to an inconsistency with Rule 5-3(3).

[7] I observe that Rule 5-3(4) requires that case planning orders are to be in Form 21. Form 21 includes a case plan. Rule 8-3, on the other hand, provides for an order in Form 34. Form 34 is easily adaptable, as the parties sought to do here, to incorporate a case plan in compliance with Form 21. The solution is, in my view, adequate, proportionate and cost effective for the parties.

[8] Even if there is some inconsistency in the forms as drafted, Rule 1-2(3) permits the court to order that any provision of the rules does not apply “if all parties to a proceeding agree.” If necessary, I would apply this sub-rule to permit consent case plan orders.

Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

Written by admin on June 16, 2011. Posted in Uncategorized. 54 Comments on Supreme Court of Canada To Address The Law of Causation in Injury Lawsuits

(UPDATE June 29, 2012 – the below decision was overturned by the Supreme Court of Canada in reasons for judgement released today. You can click here to read the Supreme Court of Canada’s reasons)

Last year the BC Court of Appeal provided reasons for judgement in Clements v. Clements in which they tried to clarify the law of causation
In short the BC Court of Appeal provided the following summary of the law of causation in BC negligence lawsuits:

[63] In summary, having regard to the over-arching policy that the material-contribution test is available only when a denial of liability under the but-for test would offend basic notions of fairness and justice, I agree with the following statement made by Professor Knutsen in setting out his conclusions (at 187):

g) The “but for” test rarely fails, and currently only in situations involving circular causation and dependency causation:

1) Circular causation involves factual situations where it is impossible for the plaintiff to prove which one of two or more possible tortious causes are the cause of the plaintiff’s harm;

2) Dependency causation involves factual situations where it is impossible for the plaintiff to prove if a third party would have taken some action in the face of a defendant’s negligence and such third party’s action would have facilitated harm to the plaintiff;

h) If the “but for” test fails, the plaintiff must meet two pre-conditions to utilize the material contribution test for causation:

1) It must be impossible for the plaintiff to prove causation (either due to circular or dependency causation); and,

2) The plaintiff must be able to prove that the defendant breached the standard of care, exposed the plaintiff to an unreasonable risk of injury, and the plaintiff must have suffered that type of injury.

Today the Supreme Court of Canada granted the Plaintiff leave to appeal (permission to appeal). Clarity in this area of personal injury law will be welcomed by lawyers across Canada and I’ll be sure to report on this case once reasons for judgement are handed down.

$160,000 Non-Pecuniary Damage Assessment for L4-5 Disc Herniation

Written by admin on June 16, 2011. Posted in ICBC Chronic Pain Cases, ICBC Spine Injury Cases, Uncategorized.

(UPDATE August 8, 2012 – The below judgement was modified in reasons for judgement released today by the BC Court of Appeal. In short, the Court held the 40% damage reduction was not justified by the evidence and substituted a 20% damage reduction. The BCCA’s reasons can be found here).
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Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for serious injuries following a BC motor vehicle collision.
In this week’s case (Bouchard v. Brown Bros. Motor Lease Canada Ltd.) the Plaintiff was involved in a 2005 rear-end collision. He was faced in an awkward position when his vehicle was struck and he sustained injuries. Fault for the crash was admitted focussing the trial on assessing damages.
Although there was competing medical evidence, the Court ultimately found the collision was a cause of a L4-5 disc herniation which required bilateral discectomies and foraminotimies at the L4-L5 and L5-S1 levels of the spine.
The Plaintiff’s symptoms of pain continued and he ultimately was diagnosed with a chronic pain syndrome. The Court accepted that the Plaintiff would likely not work in his profession again. In assessing non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $160,000 Mr. Justice Pearlman provided the following comments:
[117] I find that the motor vehicle accident was a significant factor contributing to the herniation of the plaintiff’s disc at L4-L5, and the development of the plaintiff’s symptoms of severe and disabling lower back pain, and that there is a substantial connection between Mr. Bouchard’s low back injuries and the motor vehicle accident….
[155] The assessment of non-pecuniary damages depends upon the particular circumstances of the plaintiff in each case. The factors that the court must consider include the plaintiff’s age, the nature of his injury, the severity and duration of pain, disability, emotional suffering, impairment of marital and social relationships, impairment of physical and mental abilities, and loss of lifestyle:Stapley v. Hejslet, 2006 BCCA 34 at para. 46, leave to appeal ref’d 2006 CarswellBC 2598 (S.C.C.). Here, I find that the appropriate award for Mr. Bouchard in all of the circumstances is $160,000.
This case is also worth reviewing for the Court’s discussion of causation and indivisible injuries set out at paragraphs 97-117 of the reasons for judgement. The Court found that while the collision was a cause of the injury, that there was “a very significant risk” that the Plaintiff’s back problems would have developed even absent the collision and the damages were reduced by 40% to take this risk into account.
Lastly, this case is worth reviewing for the Court’s discussion of the adverse inference principle. Following the Plaintiff’s surgery the Plaintiff obtained and exchanged copies of the relevant medical records. The Plaintiff called various expert witnesses to support the case but the treating surgeon was not called. The Defence asked the Court to draw an adverse inference. Mr. Justice Pearlman refused to do so and provided the following helpful reasons:
[121] Here, there has been full disclosure of Dr. Heran’s consultation reports and his operative procedure report. Those records were available to the defendant when Dr. Hepburn prepared his second report of October 27, 2009. It was open to the defendants to interview and call Dr. Heran if they chose to do so. Furthermore, in my view, Dr. Hunt, whose practice is devoted to the treatment of patients with chronic pain, and who was directly involved in the ongoing testing, management, and treatment of the plaintiff’s symptoms from October 2008 through May 2010, was in a better position than Dr. Heran to provide an opinion on the extent of the plaintiff’s disability and his requirements for future care. Finally, I also take into account the explanation of counsel for the plaintiff that obtaining an expert report from Dr. Heran would have put Mr. Bouchard to additional expense, and would have involved yet another review of all of the reports and clinical records of those doctors who did testify at trial. For all of these reasons, I decline to draw an adverse inference against the plaintiff.