Tag: bc injury law

BC Court of Appeal Discusses Soft Tissue Injuries and Credibility

A decision was released today by the BC Court of Appeal addressing personal injury lawsuits and Judges duties to address credibility issues in their reasons for judgement.
In today’s case (Mariano v. Campbell) the Plaintiff was injured in a 2006 BC motor vehicle collision.  The Plaintiff apparently suffered from chronic soft tissue injuries as a result of this crash.  At trial her claim was successfully prosecuted and she was awarded close to $115,000 for her damages (You can click here to read my post summarizing the trial judgement).
During trial the Plaintiff’s credibility was put squarely at issue with the defense lawyer cross examining the Plaintiff with previous statements in which she stated that her injuries recovered shortly after the collision.  The trial judge dismissed these challenges and found that the Plaintiff was a ‘very credible‘ witness.  The Defendant appealed the judgement arguing that the trial judge “made palpable and overriding errors in assessing the plaintiff’s credibility‘.  The BC Court of Appeal agreed and found that the judge failed to “seize the substance of the critical issues” and ordered a new trial.
It is very unusual for a trial judge’s findings to be overturned on the issue of witness credibility.  In reaching this decision the BC High Court said the following about a judge’s duty to give reasons for judgement explaining how they assessed credibility:

38]         This appeal concerns assessments of witness credibility and findings of fact.  It is well-settled that an appellant court must exercise great restraint in reviewing such matters.  They are properly the province of the trial judge.  In the absence of palpable and overriding error, this Court must defer to the findings of fact of a trial judge (Housen v. Nikolaisen, 2002 SCC 23, [2002] 2 S.C.R. 235).

[39] The function of a trial judge in determining credibility, and the limited role of appellate courts in respect of credibility findings  were discussed by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3:

…what is required is that the reasons show that the judge has seized the substance of the issue…The degree of detail required in explaining findings on credibility may also, as discussed above, vary with the evidentiary record and the dynamic of the trial.  The factors supporting or detracting from credibility may be clear from the record.  In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors.

[40] This case involved a soft tissue injury.  Because of the lack of purely objective evidence for such injuries, the evidence in support of the plaintiff’s case necessarily derived solely from her own reports of her injuries – either to the court, to her doctors, or (to a lesser extent) to her work colleagues.  In the circumstances, the plaintiff’s credibility was critical to the judge’s assessment of the case.  …

[41] In the case before us, then, a critical issue was whether the plaintiff’s evidence at trial about the course of her recovery was credible.  To make that determination, the judge had to examine the plaintiff’s various statements and the other evidence.

[42] It is my view that the reasons for judgment do not demonstrate that the judge “seized the substance of the critical issues”.  There are several indications that she did not do so.

[45] The trial judge’s treatment of the application for insurance and the applications to the colleges is also problematic. The documents, as previous statements by the plaintiff, were admissible for the truth of their contents.  Indeed, strong arguments can be advanced for accepting the documents as true, particularly given the evidence of Dr. Darby in cross-examination.  The judge, however, does not appear to have considered the possibility that the documents were truthful in stating that the plaintiff had fully recovered by March 2007.  Instead, her reasons suggest that she assumed that the statements to the insurer were false, and that their only value was in respect of an assessment of the plaintiff’s general credibility.  She dismissed them as being of little moment in that assessment.  She did not even mention the statements in the applications to the colleges…

[48] In my view, the reasons are problematic.  The fact that the plaintiff continued to work despite her symptoms does not, on the face of it, have any relationship to her veracity.  The issue in this case was not whether the plaintiff was exaggerating symptoms, or even whether she experienced pain at work at the time of trial.  Rather, it was whether her pain had been ongoing since the time of the accident.

[49] Similarly, the plaintiff’s emotional reaction to her neck problems had no bearing on the question of whether she was being completely forthright with the court in respect of the course that her pain took.

[50] I conclude that, looked at in their entire context, the reasons do not suggest that the trial judge “seized the substance of the critical issues”.  She did not deal with important contradictions in the evidence, and appears to have misapprehended or ignored parts of the cross-examinations of the plaintiff’s witnesses. This constitutes the kind of error that compels this Court to set aside her order.


Defendant Refused Costs at Trial For Failing to Consent to Small Claims Court Transfer


Reasons for judgement were released today addressing whether a Defendant who beat a formal settlement offer should be awarded costs.
In today’s case (Cue v. Breitkruez) the Plaintiff was involved in a rear-end collision.  He sued the rear motorist for damages.  Prior to trial the Defendant made a formal settlement offer for $1.  With liability being hotly contested the Plaintiff proposed that the case be transferred to Small Claims Court.  The Defendant refused to consent stating that “such a transfer would result in greater delay“.
At trial the Plaintiff’s case was dismissed with a finding that the Plaintiff was responsible for the collision.  (You can click here to read my summary of the trial judgement).  The Defendant then applied to be awarded double costs pursuant to Rule 9-1(5) because they beat their formal offer at trial.
Mr. Justice Smith dismissed the application noting that since Rule 14-1(10) generally restricts Plaintiff’s awarded an amount within the small claims court jurisdiction from being awarded trial costs that the Defendant should be refused costs for not agreeing to have the case heard in Provincial Court.  Specifically Mr. Justice Smith noted as follows:

7]             The matter remained in this court subject to an agreement to still limit the claim to what could be awarded in Provincial Court. Had my liability decision been different and the matter proceeded to an assessment of damages, Rule 14-1(10) would have been a bar to an award of any costs, other than disbursements, in favour of the plaintiff.  In my view, fairness requires that the same limitation apply to the successful defendant, particularly as the defendant did not agree to the proposed transfer to Provincial Court.

[8]             I therefore decline to award any costs to the defendant, other than disbursements.  There is therefore no need to consider the offer to settle because there are no costs to double.

Unintended Consequences: ICBC Wage Loss Claims and Undeclared Income


As I’ve previously written, if a person does not declare their earnings when paying their taxes they can still advance a wage loss claim in a personal injury lawsuit, however, doing so not only makes the claim more difficult to prove but also could expose the Plaintiff to repercussions from Revenue Canada.  Reasons for judgement were released last week demonstrating why this is so.
In last week’s case (Thomas v. Thompson) the Plaintiff was involved in a 2005 motor vehicle collision in Kelowna, BC.  He went to trial without a lawyer and advanced a claim for damages for over $1.3 million.   Fault for the crash was admitted by the Defendant.  At trial many of the Plaintiff’s claims were rejected by the trial judge however the Court did accept that the Plaintiff suffered from “continuing pain” as a result of the collision and this would need to be treated on an ongoing basis with medication.  As a result the Plaintiff was awarded damages for non-pecuniary loss and cost of future care.
The Plaintiff gave evidence that he earned an average income of more than $60,000 per year in the period shortly prior to the crash.  However, his tax returns did not reflect this.  Despite the unreported nature of the pre-injury income Mr. Justice Brooke accepted that the Plaintiff did earn a “substantial income” in the years prior to the crash.  The Court rejected the claim for loss of past and future income, however, finding that the Plaintiff’s injuries, while on-going, did not impair his earning capacity.
The end result is that, in advancing an unsuccessful claim for past loss of income, the Plaintiff testified in open court as to the amount of income he earned that he failed to report to Revenue Canada.   As reasons for judgement are publicly available there is nothing stopping government agencies such as Revenue Canada from pursuing Plaintiffs who give such evidence for payment of back taxes and penalties.  These can, of course, be substantial.  The difficulties with advancing wage loss claims when the history of earnings is unreported is demonstrated by the following passage from the trial judge:

[24]         I now turn to the damages claimed by the plaintiff, and the question of credibility.

[25]         First of all, the plaintiff said under oath that he earned an income in 2004 of $63,886 and in 2005 from January 3 to June 28 an income of $31,444 (or more than $60,000 on average a year), in home renovation work. Mr. Dave Novak gave evidence for the plaintiff that he hired him on a regular basis to do home improvements and renovations, based on an estimate in advance, for which he sometimes paid in cash and sometimes by cheque. He did not disagree with the amounts shown by Mr. Thomas on forms of sales orders, but acknowledged that he had no firm recollection. In his 2003 tax return summary, Mr. Thomas reported an income of $21,815 employment insurance benefits. No reference is made to income from employment. In 2004 Mr. Thomas reported an income of $6,840 from employment insurance, and other income of $500 for a total of $7,340. In 2005 Mr. Thomas reported no income, and in 2006 and following Mr. Thomas reported an income of Social Assistance payments varying from a little more than $2,000 a year to almost $11,000 a year. There is no reference to any employment income in any tax return placed in evidence. Mr. Thomas explains this by saying that he did not understand that tax was payable on earned income where the tax payer did not charge GST or PST. I find this to be preposterous. What Mr. Thomas is saying is that he is well informed enough to claim employment insurance benefits, but not well informed enough to report actual income. It is noted that in each year his tax return was prepared by H&R Block, a commercial tax preparer. I also note that Mr. Thomas made an assignment in bankruptcy on August 24, 2007 in which he disclosed liabilities of in excess of $41,000 made up of student loans and credit card debts. While I accept that Mr. Thomas has been challenged in his language skills in the past, and I must consider what role if any this might have played, I find his understanding and usage was fluent and effective and I can only conclude either that he knowingly failed to disclose his true income in his tax returns, or that he did not earn the kind of income that he claims to have made in the home renovation business.

[26]         I find that Mr. Thomas was working in 2003, 2004 and 2005 and earning a substantial income. But, not only was he failing to report that income but he seemingly was drawing employment insurance which is, of course, payable upon being fit but unable to find work.

$75,000 Non-Pecuniary Damages Assessment For Scapulo-Thoracic Junction Soft Tissue Injury


Reasons for judgement were released today by the BC Supreme Court, Prince George Registry, assessing damages for a chronic and partially disabling soft tissue injury.
In today’s case (Knight v. Belton) the Plaintiff was injured in a 2008 rear-end collision.  The rear motorist admitted fault for the crash.  The Plaintiff suffered various injuries the most serious of which was a Grade 2 strain at her scapulo-thoracic junction.  Injuries at this level are notoriously difficult to treat.  While the Court heard competing evidence about whether the injury would recover Madam Justice Gray accepted that it would not and that the Plaintiff would likely experience chronic pain on a permanent basis as a result.
The Court awarded the Plaintiff damages at  just over $480,000 including $75,000 for the Plaintiff’s non-pecuniary damages.  In arriving at this figure Madam Justice Gray provided the following reasons:

[65]         Non-pecuniary damages are damages to recognize losses that have not required an outlay of money or have not involved losing payments. The purpose is to provide solace to Ms. Knight for such things as pain, suffering, disability, inconvenience, and loss of enjoyment of life. One purpose of such damages is to substitute other amenities for those Ms. Knight has lost, not to compensate her for loss of something with a monetary value. The award addresses losses both up to the trial date and which she will suffer in the future…

[67]         Ms. Knight was and is an engaging, enthusiastic, hard-working, and practical woman. She loves dental hygiene. She will not be able to practice it full time, and may have to give up clinical practice altogether.

[68]         Ms. Knight suffered several months of headaches, vertigo, and neck pain. She suffered significant right shoulder pain for about a year. She has on-going chronic mid-back pain and periodic right shoulder pain.

[69]         Ms. Knight is chronically in pain, and as a result, is not as energetic as she was before the accident. She is no longer able to enjoy rough physical play with her children. She is no longer able to enjoy outdoor activities that she previously enjoyed, like running, hiking, boating, skiing, and bicycling. She was unable to contribute as much as she wanted to building the family home. The accident has significantly diminished the quality of her life.

[70]         Ms. Knight referred to these cases: Cleeve v. Gregerson, 2007 BCSC 1112; Gray v. Fraser Health Authority, 2009 BCSC 269; Poirier v. Aubrey, 2010 BCCA 226, 4 B.C.L.R. (5th) 173; and Paller v. Paller , 2004 BCSC 997.

[71]         The defence referred to these cases: Rorison v. Dornan, [1993] B.C.J. No. 752 (S.C.); Letourneau v. Min, 2001 BCSC 1519; Amberiadis v. Groves, 2005 BCSC 1270; Sharpe v. Tidey, 2009 BCSC 948; Ragneborg v. Giesbrecht, 2009 BCSC 110; Sylte v. Rodriguez, 2010 BCSC 207; Henri v. Seo, 2009 BCSC 76; Brock v. King, 2009 BCSC 1179; Anderson v. Merritt (City), 2006 BCSC 90; and Larlee v. Shier, 2008 BCSC 1610.

[72]         I also considered Cathro v. Davis, 2008 BCSC 1645.

[73]         No two cases are alike. Ms. Knight is entitled to damages for pain and suffering in the amount of $75,000.

Surveillance Evidence Excluded From Trial for Failure of Disclosure


(Note: The Decision discussed below was overturned by the BC Court of Appeal on August 25, 2011)
As I’ve previously written, the Rules of Court require parties to a BC Supreme Court Civil Lawsuit to disclose relevant documents to opposing parties.  Some documents are privileged and need not be exchanged but their existence needs to be disclosed and these documents need to be described “in a manner that, without revealing informaiton that is privileged, will enabel other parties to assess the validity of the claim of privilege“.  Failure to do so can result in exclusion of the documents from trial.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, discussing this area of law.
In today’s case (Houston v. Kine) the Plaintiff was injured in a 2006 motor vehicle collision.  The Defendant admitted responsibility for the crash.  The Plaintiff sustained various  injuries including a major depressive disorder, pain disorder, anxiety disorder and PTSD following the collision.  Madam Justice Gropper found that the collision was responsible for these injuries and assessed the Plaintiff’s damages at $525,000.
There was a 5 month break from the beginning of the trial to its conclusion.  During this break ICBC undertook surveillance of the Plaintiff over two periods of time.  The Defence lawyers, however, failed to disclose this evidence in compliance with the Rules of Court.  When they attempted to put the video into evidence the Plaintiff objected.  Madam Justice Gropper sided with the Plaintiff and held that the evidence should not be admitted.  In reaching this conclusion the Court provided the following helpful reasons:

[11] The burden on the party seeking to tender the undisclosed document is to establish to the Court’s satisfaction a reasonable explanation for the failure to disclose. As Henderson J. stated inCarol v. Gabriel (1997), 14 C.P.C. (4th) 376, 75 A.C.W.S. (3d) 858:

[9]        A party tendering a previously undisclosed document must establish to the court’s satisfaction a justification for the failure to abide by Rule 26(14). The question of whether the opposite party will be prejudiced by the admission of the document is always relevant but is not, in and of itself, decisive. Even in cases where no prejudice will ensue from the admission in evidence of the document, it will be excluded unless there is a reasonable justification for the earlier failure to disclose it. To hold otherwise would be to dilute the disclosure obligation and tempt counsel to refrain from disclosing in situations where they do not expect any prejudice to result.

[12] Here, the explanation for the failure to disclose is that the videos are not documents and they were never in the defendants’ possession or control. Rather, these videos and the accompanying reports fall clearly within the solicitor’s brief.

[13] The defendants’ position that it is sufficient that the videos and background materials were disclosed in March 2010, before the recommencement of the trial does not address the requirement of the Rule in 23(13) that the disclosure be “forthwith.” Not disclosing, as a matter of strategy, is not a satisfactory explanation to address the “forthwith” requirement.

[14] It is therefore my view that the videos have not been disclosed in accordance with R. 26(13) and I must therefore consider whether I ought to exercise my discretion to allow the Mexico video into evidence in accordance with R. 26(14).

[15] The factors to be considered are described by the Court of Appeal in Stone v. Ellerman, 2009 BCCA 294; 273 B.C.A.C. 126; [2009] 9 W.W.R. 385; 71 C.P.C. (6th) 25; 92 B.C.L.R. (4th) 203; 2009 CarswellBC 1633, at paras. 30 and 31. They are:

1.         prejudice to the party, in this case the plaintiff;

2.         whether there was a reasonable explanation for the other party’s failure to disclose;

3.         whether excluding the document would prevent a determination of the issue on the merits; and

4.         whether in the circumstances of the case the ends of justice require that the document be admitted.

[16] Addressing the prejudice to the plaintiff, it is difficult for me to assess the prejudice versus the probative value issue as I have not seen the videos and I have not reviewed the investigators’ notes of the video. I note in addressing this factor that there were hours of video recorded and the defendants’ counsel has provided a summary of what is contained in the videos. Based upon that, I am not satisfied that the videos are sufficiently probative to outweigh the prejudice to the plaintiff in allowing their admission having not been disclosed forthwith on a supplementary list of documents. This is despite the assertion that the plaintiff “lived” the events and that she would not be surprised by the contents. She has given evidence and called her medical and functional capacity experts. The late disclosure of the video evidence has impaired the ability of the plaintiff to meet the evidence.

[17] The admission of the videos and notes may require that she be recalled, or that she recall some of the experts. These days were added to the trial for its conclusion. The admission of the video evidence will necessarily extend the trial.

[18] In relation to the second factor, whether or not there was a reasonable explanation for the parties’ failure to disclose, I have already determined that strategy does not provide a reasonable explanation for lack of disclosure. Rule 26(13) requires that supplementary documents are to be disclosed forthwith and they were not.

[19] Concerning the third factor, whether the document would prevent the determination of the issue on the merits, I have heard evidence including the plaintiff’s evidence and the defendants’ evidence and expert evidence about the plaintiff’s activity and her level of disability. Based on the summary provided by counsel for the defendants of the contents of the video I cannot conclude that I will be prevented from determining the issue on the merits.

[20] Finally, I am not persuaded that the ends of justice require that videos be admitted.

[21] I therefore find that the videos are not admissible.

Interestingly, Madam Justice Gropper went even further and held that the witnesses who made the videos could not testify as to their observations of the Plaintiff as doing so would undermine the decision to exclude the video evidence.  The Court’s reasoning behind this decision could be found at paragraphs 22-28 of Appendix A to the Reasons for Judgement.

Withdrawing Deemed Admissions: Rule 7-7(5) Given First Judicial Consideration


Under both the old and the new BC Supreme Court Civil Rules parties to a lawsuit could ask the opposing side to make binding admissions through a “Notice to Admit”.  If the opposing side fails to respond to the Notice in the time lines required they are deemed to have made the sought admissions.  Once the admission is made it cannot be withdrawn except by consent of the parties or with the Court’s permission.  Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, considering when deemed admissions could be withdrawn under the New Rules.
In today’s case (Weiss v. Koenig) the Plaintiff was involved in a 2006 motor vehicle collision.  He claimed he sustained various injuries including bilateral hearing impairment.  In the course of the lawsuit ICBC asked the Plaintiff to make various admissions including an admission that his hearing was not affected as a result of the collision.  The Plaintiff failed to respond to the Notice to Admit in time thus was deemed to make the admissions.  The Plaintiff brought a motion to set these admissions aside and ICBC opposed.
Master Keighley granted the motion and set aside the admissions.  In doing so the Court noted that the admissions were made by inadvertence and that there was little prejudice to ICBC if these admissions were set aside.
This is the first decision I’m aware of applying Rule 7-7(5) of the new Rules of Court.  The Court noted that the new rule is almost identical as the old rule and implies that the precedents developed under the old Rule 31 remain good law.  Master Keighley set out and applied the following test in addressing the application:

Is there a triable issue which in the interests of justice should be resolved on the merits and not disposed of by deemed admission? In applying the test, all of the circumstances should be taken into account including:

1.         That the admission has been made inadvertently, hastily, or without knowledge of the facts.

2.         That the fact admitted was not within the knowledge of the party making the admission.

3.         That the fact admitted is not true.

4.         That the fact admitted is one of mixed fact and law.

5.         That the withdrawal of the admission would not prejudice a party.

6.         That there has been no delay in applying to withdraw the admission.

BC Court of Appeal Discusses Non-Pecuniary Damages for Chronic Pain

Reasons for judgement were released today by the BC Court of Appeal addressing, amongst other things, a fair range of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for chronic pain caused by the negligence of others.
In today’s case (Rizzolo v. Brett) the Plaintiff was injured in a motorcycle accident in 2005.  The Defendant was found fully at fault for the crash.    The Plaintiff suffered a fractured tibia and fibula.  These bony injuries went on to good recovery however the Plaintiff was left with chronic pain as a consequence of the collision.  At trial the Plaintiff was awarded $562,000 in total compensation for the injuries including a non-pecuniary damages award of $125,000.  (You can click here to read my post summarizing the trial judgement)
The Defendant appealed arguing that this assessment was inordinately high.  The BC Court of Appeal disagreed and held that in cases of chronic pain which affect functioning there is nothing inappropriate with non-pecuniary damage awards well over $100,000.  Specifically the BC High Court held as follows:

[32]         A review of those cases supports the respondent’s argument that the trial judge’s award of $125,000 was within the acceptable range.  In Moses v. Kim, 2007 BCSC 1388, the plaintiff was struck while crossing the Trans-Canada highway, breaking his legs.  While the breaks healed, the plaintiff was left with pain in his legs, back and hip.  As he had been a very physical person prior to the accident, hunting, fishing, logging and playing sports, much of his life was affected.  In addition to restricting the activities he could enjoy, this led him to become shorter tempered and angrier.  He was awarded $165,000 in non-pecuniary damages.

[33]         The plaintiff in Funk v. Carter, 2004 BCSC 866, was also struck by a vehicle and suffered broken legs, as well as some soft tissue injuries.  While the plaintiff underwent surgery, the injuries did not heal well, and he was left with chronic pain and impaired mobility.  As with the case at bar, and with Moses, the plaintiff had been “very fit” prior to the accident, and had “a great deal of difficulty adjusting psychologically”.  As a result, he was awarded $140,000 in non-pecuniary damages.

[34]         Moore v. Brown, 2009 BCSC 190, was a case similar to that at bar where the plaintiff was on a motorcycle when struck by the defendant.  He suffered substantial injuries, including a shoulder injury, a leg ligament tear, knee problems and a foot injury.  The accident also led to chronic neck pain, headaches and lumbar problems.  Three years later, at trial, the plaintiff was still experiencing difficulties, including an altered gait and difficulty continuing in his work as a geo-scientist.  The trial judge awarded non-pecuniary damages of $115,000.

[35]         In Dufault v. Kathed Holdings Ltd., 2007 BCSC 186, the plaintiff fell while descending the stairs at the defendant’s business.  The fall resulted in knee injuries that the trial judge accepted would likely require knee replacement surgery.  This was exacerbated by chronic pain, hip problems, and some resultant mild depression.  Taking these considerations into account, the trial judge awarded $110,000 in non-pecuniary damages.

[36]         Finally, in Mosher v. Bitonti, 1998 CanLII 5186 (B.C.S.C.), the plaintiff sued two defendants for separate accidents.  The trial judge found that the plaintiff had suffered fractured right leg bones as a result of the first accident, which caused muscular damage.  He accepted that these were “very significant injuries” and that the plaintiff had suffered a painful recovery.  While there was a small chance of future degenerative arthritis, the plaintiff was left with a normal gait, but with some difficulty squatting, kneeling or crouching.  Those injuries resulted in the plaintiff being awarded $80,000 in non-pecuniary damages.

[37]         As can be seen from those cases, trial judges have assessed non-pecuniary damages at well over $100,000 where there is an element of significant ongoing pain and, particularly, where the plaintiff had previously enjoyed an active lifestyle or a physical vocation….

[39]         I agree with the respondent that the trial judge did not assess damages on the basis of a well-resolved fracture.  Rather, the award for non-pecuniary damages was largely based on the trial judge’s conclusions that the respondent suffered and would continue to suffer from chronic debilitating pain that profoundly affected all aspects of his life.  Viewed in this way, the award cannot be said to be inordinately high.  The chronic pain cases cited by the trial judge support her assessment.

[40]         I would not accede to this ground of appeal.

Another point of interest in today’s case were the Court’s comments about gathering new evidence after trial to challenge an award for ‘diminished earning capacity‘.  At trial the Plaintiff was awarded $250,000 for his loss of earning capacity.  The Defendant appealed and asked the Court of Appeal to force the Plaintiff to produce “documents pertaining to his employment since the trial“.  The BC High Court refused to do so and provided the following useful comments:

[43]         An appellate court should decline to exercise its discretion to make an order to admit “new evidence”, unless that evidence would tend to falsify an assumption that the trial judge made about what was, at the time of judgment, the future:  see Jens v. Jens, 2008 BCCA 392 at para. 29, citing North Vancouver (District) v. Fawcett (1998), 60 B.C.L.R. (3d) 201 (C.A.)(sub nomNorth Vancouver (District) v. Lunde).

[44]         It is unnecessary for me to review in detail the nature of the evidence tendered on the application by the appellant and in reply by the respondent.  Suffice it to say that the conclusions the appellant contended should be drawn from her proposed new evidence were clearly and persuasively refuted by the respondent in an affidavit and, in any event, did not rise to the necessary factual standard that would properly form the basis for a successful application for admission of new evidence.

The New BC Supreme Court Rules and "Responsive" Expert Reports


Important reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, interpreting and applying Rule 11-6(4) for the first time.  This rule deals with “responsive” expert opinion evidence.
Under the old Rules of Court parties could call responsive expert evidence without notice provided the evidence was truly responsive.  The new rules of court changed this and require responsive expert reports to be served 42 days ahead of the scheduled trial.
In today’s case (Wright v. Bower) the Plaintiff was involved in a motor vehicle collision and alleged chronic back pain as a result of the crash.  Her lawyer served expert reports addressing these injuries in compliance with the time lines set out in the rules of court.  The Defendant brought a motion to compel the Plaintiff to attend an examination with an orthopaedic surgeon in order to obtain a ‘responsive’ report.  The Plaintiff opposed arguing that an examination was not necessary for the Defendant to obtain a truly responsive report.  Mr. Justice Savage agreed with the Plaintiff and dismissed the motion.  In doing so the Court provide the following useful reasons setting the parameters for responsive expert evidence:

[12]         Rule 11-6(4) was enacted to fill a lacuna in the Rules.  Under the former Rules, Rule 40A permitted parties to call expert evidence in reply without notice at trial.  In order for such evidence to be admitted, however, it had to be truly responsive to the expert evidence of a witness called by the opposing party.

[13]         In Stainer, supra, the British Columbia Court of Appeal considered Rule 40A(3) and the scope of the Court’s discretion to admit responsive evidence.  At paragraphs 16-18, Finch J.A. said:

[16]      …The admission of expert evidence is now governed by Rule 40A(3)

An expert may give oral opinion evidence of a written statement if the opinion has been delivered to every party of record at least sixty days before the expert testifies.

[17]      That rule applies equally to all parties.  In the normal course, a defendant will wish to protect his right to adduce expert evidence at trial by giving the notice required by that rule.  But the court retains a discretion to admit responsive evidence of which notice has not been given:  Pedersen v. Degelder (1985), 62 B.C.L.R. 253 (B.C.S.C.); Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7 (S.C.); and Kelly v. Kelly (1995), 20 B.C.L.R. (3d) 232 (S.C.).  In the latter case Mr. Justice Williamson said:

I would restrict, of course, as courts I think must, the practice of having opinion evidence without notice strictly to truly responsive rebuttal evidence, and I think that if that rule is carefully observed, there should be no difficulties.

[18]      That is, in my respectful view, a correct statement of the proper practice. …

[15]         Amongst other things, the parties argued before me regarding whether the new Rules have substantively changed the practice which existed under Rule 40A.  They agreed that this is an important practice point, and a case of first impression.

[16]         Rule 40A gave the Court discretion to admit responsive evidence of which notice had not been given.  Rule 11-6(4) now provides that notice must be given of responsive expert evidence (although I note that the Court retains discretion to admit expert evidence of which sufficient notice has not been given).

[17]         I would expect that, in the ordinary course, an examination would be ordered under Rule 7-6(1) where a person’s medical condition was in issue in an action, provided it was requested in a timely way.

[18]         However, at this point in time in the action, the defendants are limited to what Mr. Justice Williamson referred to in Kelly, supra, as “truly responsive rebuttal evidence”.  The application must be considered in that light; the question on this application is not one of notice, but whether the Examination should be ordered to enable the defendant to file responsive evidence.  The authorizing Rule, 7-6(1) uses the term “may”.

[19]         In Kroll v. Eli Lilly Canada Inc. (1995), 5 B.C.L.R. (3d) 7, Sanders J., as she then was, noted that “true response evidence, does not permit fresh opinion evidence to masquerade as answer to the other side’s reports”.

[20]         In C.N. Railway v. H.M.T.Q. in Right of Canada, 2002 BCSC 1669, Henderson J. considered the admissability of “reply reports” holding that only the portions of the reports that provided a critical analysis of the methodology of the opposing expert were admissible as responsive evidence.  The portions of the reports describing the authors’ own opinions on the matters in issue were not admitted.

[21]         In this case, the defendants do not explain why an examination is required in these circumstances, other than a statement by a legal assistant that counsel says such is “necessary to properly defend this action and to respond to the reports of Dr. Weckworth and Dr. O’Connor”.  Master McCallum in White v. Gait, 2003 BCSC 2023 declined to order an examination where it had not been shown why such was required to produce a responsive report.

[22]         In my opinion, the bare assertion reported to a legal assistant in this case is insufficient to support an order under Rule 7-6(1) that the plaintiff attend the Examination, when the defendants are limited to providing response reports under Rule 11-6(4).  In the circumstances, the application is dismissed.  The plaintiff is entitled to costs of the application.

ICBC Claims and Pain Triggered in Pre-Existing Asymptomatic Conditions


As I’ve previously written, a common occurrence after a car crash is the onset of pain in a pre-existing but asymptomatic condition.  When this occurs it is no defence for the at-fault party to argue that the pre-existing condition is more responsible for the symptoms than the crash.  This principle was demonstrated in reasons for judgement released today by the BC Supreme Court, Vancouver Registry.
In today’s case (Neumann v. Eskoy) the Plaintiff was involved in a rear-end collision in 2006.  The Defendant admitted fault.   The trial focused on the value of the Plaintiff’s claim.
Prior to the crash the Plaintiff has osteoarthritis in his hip and asymptomatic degenerative changes in his spine.  After the crash these conditions became painful and the Plaintiff went on to develop a chronic-pain syndrome.  The Defendant hired a doctor who gave evidence that the car crash was not the main cause of the Plaintiff’s chronic pain, rather it was mostly the fault of the pre-existing degenerative changes.
The Defence lawyer then argued that the Plaintiff’s compensation should be relatively modest to account for this pre-existing condition.  Mr. Justice Brooke disagreed and went on to award the Plaintiff $90,000 in non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for his chronic pain syndrome.  In doing so the Court provided the following useful comments:

[13]         I also refer to the decision of the B.C. Court of Appeal in B.P.B. v. M.M.B., 2009 BCCA 365 where Mr. Justice Chaisson, at paragraphs 42 and 43, says this:

[42]      In my view, the trial judge in this case failed to determine whether the plaintiff’s injury was divisible or indivisible. She appears not to have distinguished “between causation as the source of the loss and the rules for the assessment of damages in tort” as mandated by the Supreme Court of Canada in para. 78 of Blackwater. The liability question is whether the conduct of the defendant caused injury. The assessment of damages requires a determination whether the injury derived from multiple sources and whether it is divisible. If it is, responsibility is allocated to the individual sources of the injury.

[43]      It the injury is indivisible, the court must consider the possible application of the thin skull or crumbling skull rules in the context of the victim’s original condition. If the crumbling skull rule applies, it forms part of returning the victim to his or her original condition and the tortfeasor is not responsible for events that caused the crumbled skull. Absent the application of the crumbling skull rule, where the injury is indivisible, all torfeasors who caused or contributed to the injury are 100% liable for the damages sustained by the victim.

See also the decision of the B.C. Court of Appeal in Bradley v. Groves, 2010 BCCA 361, which was decided after the trial of this action.

[14]         I am satisfied that before the accident and despite the asymptomatic degenerative conditions, the plaintiff was not only functioning adequately, but also at a very high physical level. But for the accident and the injury sustained to his neck, the plaintiff would not have sustained the chronic pain syndrome from which he now suffers. I am satisfied that the plaintiff’s long and commendable work history was interrupted by the injury sustained by him in the accident, and that despite the plaintiff’s best efforts he continues to suffer from chronic pain which is moderated somewhat by medication. I am also satisfied that the medication itself has an adverse aspect in addition to its therapeutic effect in that the plaintiff now suffers from sleep apnea and fatigue. Pain and fatigue on a continuing or chronic basis can and do dramatically impair the quality of life and the enjoyment of life. The work that Mr. Newmann now does is well paying and secure, but Mr. Newmann worries that he may not be able to continue indefinitely. Worry is burdensome and can also impair the enjoyment of life. I find that an appropriate award for non-pecuniary damages is $90,000.

The BC Public Healthcare System: Too Slow for Injured British Columbians?


British Columbia has a great public heath care system.  If you are sick or injured you can see a doctor, if diagnostic tests are prescribed they are covered.  If surgery is required the public health care system will take care of that as well.
As great as our system is, however, it is not without its flaws.  One of the biggest shortcomings is delay. Many people involved in serious injury claims quickly come to this conclusion.  If you need to see a specialist the wait can be long.  Delays can be equally long for diagnostic tests and surgical intervention.  Some people with means prefer not to wait and seek out private health care services instead.   Where there is a need the market tends to fill it and some entrepreneurial companies have sought to fill this void and offer British Columbian’s services on a private basis.
There is a tension, however, between the Government of BC and these private health care facilities.  These tensions were demonstrated in reasons for judgement released today by the BC Court of Appeal.
In today’s case (Cambie Surgeries Corporation v. British Columbia (Medical Services Commission), the Province of BC sought a Court order allowing a government inspector  to access the premises of the Cambie Surgeries Corporation and to perform audits to see if violations of the Medicare Protection Act are taking place through the clinics private services.
At the trial level the BC Supreme Court ordered an injunction requiring these audits to take place.  The Cambie Medical Clinic appealed arguing that provisions of the BC Medicare Protection Act are unconstitutional because they “have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner“.
Ultimately the BC Court of Appeal set aside the trial decision finding that the government should have applied to a justice of the peace for a warrant to inspect Clinic rather than seeking an order through a lawsuit. Before reaching this verdict the BC Court of Appeal set out the following provisions which restrict the availability of private health care services in BC and the argument alleging this restriction is unconstitutional:

[4]             The Medicare Protection Act governs the administration of British Columbia’s Medical Services Plan (the “Plan”), the primary public health insurance scheme in the province.  Most residents of B.C. are enrolled as beneficiaries and most physicians are enrolled as practitioners entitled to payment for their services under the Plan.  A number of the provisions of the Act are relevant to the appeal.  Rather than setting them out in the body of these reasons, I have appended the relevant portions of the statute.

[5]             In the normal course, practitioners bill the Commission for services performed for beneficiaries, and the Commission pays the practitioners in accordance with its established payment schedules.  Section 14 of the Act allows enrolled practitioners to opt out of the normal payment arrangements and to bill patients directly.

[6]             Unless a physician has opted out or is not enrolled in the Plan, s. 17 prohibits him or her from charging a beneficiary for the provision of a service covered by the Plan.  Where a physician has opted out or is not enrolled, s. 18 prohibits him or her from charging a patient more than the amount that the Plan would pay for a medical service.

[7]             Together, ss. 17 and 18 greatly restrict the scope for medical practitioners to bill patients directly for their services.  Section 18 also prohibits “extra billing” – i.e., billing a patient for an amount beyond that which the Plan pays for a service.

[8]             The clinics admit that they have engaged in practices that would violate the statutory prohibitions against direct and extra billing if those prohibitions are constitutional.  Some patients have signed “acknowledgement forms” confirming their understanding that they are being billed for amounts in excess of those provided for under the Plan.

[9]             The clinics contend, however, that ss. 14, 17 and 18 of the Act are unconstitutional.  They allege that those provisions have the effect of preventing patients from using their own resources to obtain desired medical care in a timely manner.  Relying primarily on Chaoulli v. Quebec (Attorney General), [2005] 1 S.C.R. 791, the clinics argue that the impugned provisions of the Medicare Protection Act violate the rights of patients to life, liberty, and security of the person in a manner that is not in accordance with principles of fundamental justice, contrary to s. 7 of the Canadian Charter of Rights and Freedoms.  They have commenced an action seeking a declaration that the impugned provisions are unconstitutional.

It appears that this battle will continue to play out before the Courts.  It will be welcome, for both patients and health care practitioners alike, to have certainty in this area of law so that British Columbians can better know what healthcare care options are available to them when they are in need of care.

Contact

If you would like further information or require assistance, please get in touch.

ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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