Tag: bc injury law

Setting Aside an Unfair Settlement in an ICBC Injury Claim


As I’ve previously written, typically when an ICBC claim is settled and a “full and final release” is signed the agreement is binding and can’t be undone.
BC Courts can, however, set aside ‘grossly unfair‘ agreements.  Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, dealing with this area of the law.
In today’s case (McIsaac v. McIsaac) the Plaintiff was injured in a single vehicle car crash.  Her husband was driving and was the at fault party.   The Plaintiff’s injuries were serious enough to require hospitalization.
In the months that followed the collision ICBC approached the Plaintiff on a number of occasions and eventually a settlement was reached to resolve her claims for $22,000.  The agreement was ‘somewhat low‘ given the severity of her injuries.  She regretted finalizing her claim and retained a lawyer.   She commenced a lawsuit and asked the settlement to be set aside.  ICBC argued that it was a binding contract and should not be undone.  Mr. Justice Wong agreed with ICBC but before dismissing the lawsuit the Court set out the following useful summary of the law:

[17] I agree with defendant’s counsel’s submission that there are two alternative tests to assess the validity of the settlement.  Also, to have a settlement set aside or voided, the insured must have been unfairly induced to accept the settlement or release, and that the settlement or release must also be grossly unfair or grossly inadequate.  Settlement and release of a claim may not be set aside where the parties are not on equal footing if the insurer can demonstrate that the settlement is fair and reasonable.

[18] There are two alternative tests to determine the validity of a settlement.  Whether, when the settlement is looked at in the light of the knowledge of the adjuster at the time the settlement was entered into, the bargain was fair, just and reasonable, and whether the transaction seen as a whole is not sufficiently divergent from community standards of commercial morality that it should be rescinded.  See McCullogh v. Hilton (1998) 63 B.C.L.R. (3d) 272 (B.C.C.A.) and see also Gindis v. Brisbourne (2000) 72 B.C.L.R. (3d) 19 (B.C.C.A.), particularly at paragraphs 42 to 44.

[19] A settlement with an unrepresented claimant will not necessarily be invalid simply because all of the symptoms stemming from any injuries have not been fully resolved.  Again, see McCullogh.

[20] There is no evidence that the injuries sustained by the plaintiff were, at the time of settlement, any worse than what was understood by the plaintiff and the adjuster, nor is there any evidence that the plaintiff’s injuries have become any worse since the settlement was entered into.

[21] Quite apart from any alleged inequality of bargaining power, the plaintiff and the adjuster had a complete picture of the plaintiff’s medical condition at the time of the settlement directly from the plaintiff’s medical caregivers.

[22] Clearly on the evidence, the plaintiff relied on and trusted the ICBC adjuster and their bargaining power were unequal, but the ultimate question is whether viewed objectively, the agreement was unconscionable and offended applicable standards of commercial morality.

[23] I am satisfied on the evidence that it cannot be said that the plaintiff was taken advantage of by ICBC.  The plaintiff, upon receiving the offer to settle at $22,000, could have consulted with a lawyer before accepting the offer, but for reasons of her own chose not to.

[24] Counsel for the plaintiff now submits the adjuster relied on outdated 12 to 18 year case law authorities as guidance on damage quantum range, and did not make any adjustment for interim inflation.  Be that as it may, the amount offered likely also factored in some discount for contributory negligence by the plaintiff in not being seat belted at the time of the accident.

[25] I might consider the amount settled by the parties in this case to be somewhat low, but taking into account all of the outlined factors related earlier, I cannot say the bargain struck was grossly unfair and unconscionable.  In order to maintain consistency and predictability in commercial transactions, public policy requires court enforcement of contracts not found to be unconscionable.

BC Court of Appeal Clarifies Discretionary Costs Awards in Fast Track Trials

As I’ve previously written, when a person wins in a lawsuit in the BC Supreme Court they are usually entitled to ‘costs‘.
The normal amount of costs a successful litigant is entitled to are set out in a tariff as an appendix to the Rules of Court (appendix B).  However, in fast track trials, the amount of costs a person is entitled to is capped under Rule 66.  A judge has discretion to waive this cap and award a litigant more.  Today, the BC Court of Appeal released reasons for judgement dealing with the extent of that discretion.
In today’s case (Majewska v. Partyka) the Plaintiff was injured in a 2007 BC car crash.  ICBC admitted that the driver was at fault.  The lawsuit focused on the value of the Plaintiff’s claim.  The Plaintiff made a formal offer to settle her case for $50,000.  ICBC made a formal offer for $25,000.  The trial judge ultimately awarded just over $62,000 in damages.
The Court went on to award the Plaintiff double costs under the ‘usual tariff‘.  ICBC argued that while the Court did have discretion to award costs above the capped amount set our in Rule 66(29) the Judge was wrong in awarding them under the ‘usual tarriff’ and should have used the limited amounts set out in Rule 66 as guidance for the increased costs award.  The BC Court of Appeal agreed and set out the following principles:
[29] Thus, Anderson established two principles. First, it confirmed that there is discretion to award costs beyond the limits in R. 66(29) if there are special circumstances. Second, where such an award is justified, it affirmed that costs should be calculated using those limits as reference points, rather than under the usual tariff…

[31] I appreciate that Anderson dealt only with a settlement offer, whereas there were additional special circumstances in this case. The trial had run for three and a half days, and there was an issue of some complexity. However, the approach in Anderson can easily be adapted to calculate costs for extra days of trial by adding a further $1,600 for each day, based on the present figures of $5,000 and $6,600 in R. 66(29). This was the approach used by Gerow J. in Park, where the R. 66 trial had taken three days.

[32] Using the amounts in R. 66(29) as a basis for awarding increased costs because the issues were complex is not as straightforward. I am persuaded, however, that theAnderson approach could be adapted effectively to accomplish this, again by using those amounts as the basis for calculations.

[33] This approach brings desirable consistency and predictability to costs awards following fast track litigation. The varied approaches that have developed under R. 66 have led to uncertainty with respect to both exposure to and recovery of costs under the rule. Having opted into the R. 66 process, fast track litigants should be able to reliably assess their potential costs liability or recovery in making decisions about the conduct of the case….

[37] I would conclude that the discretionary nature of R. 66(29) is circumscribed by the objectives of R. 66: to provide a speedier and less expensive process for relatively short trials. Those objectives are best served by awarding lump sum costs, calculated by reference to the amounts in R. 66(29).

[38] I acknowledge there may be situations that justify a departure from such costs. I anticipate these would be “exceptional” circumstances rather than “special” circumstances, and might include situations deserving of special costs or solicitor client costs, however, such matters must be left for another day.

[39] I would therefore allow the appeal, and calculate costs under R. 66(29) as follows. Under the present limits of $5,000 and $6,600 I take the pre-trial portion of costs to be $3,400, and $1,600 as representative of each day of trial. The plaintiff’s offer to settle was delivered only six days before trial. Thus, she is not entitled to double costs for trial preparation. She is, however, entitled to double costs for three and a half days of trial, calculated at $3,200 per day. Total costs are thus $14,600 ($3,400 plus $11,200) before disbursements and taxes.

Despite winning the appeal, the BCCA ordered that ICBC pay the Plaintiff’s costs of the appeal because this was a ‘test case‘ and but for that reason ICBC would not have proceeded with the appeal.  The Court stated as follows:

[42] In my view, an order that each party bear its own costs would not be appropriate. The amount in issue is not so significant that the parties would have undertaken the appeal of their own accord. Because the defendant’s insurer chose to use it as a test case, the plaintiff was put to the expense of responding to the appeal. The defendant’s late and unsuccessful attempt to raise a second ground of appeal increased that expense, as the plaintiff had to reply to the new ground as well. In Patterson v. Rankel (1998), 166 D.L.R. (4th) 574 (B.C.C.A.), Southin J.A. described the same insurer’s agreement to pay the plaintiff’s costs in a “test case” as “a very proper thing to do”, and ordered costs in those terms. I agree that is the appropriate result in such a case.

I should point out that Rule 66 is being taken off the books as of July 1, 2010 and being replaced with Rule 15.  However, today’s case ought to retain value as a precedent under the new rule because Rule 15-1(15) has language almost identical to Rule 66(29).

Back to Basics – BC Injury Trials and "Relevant" Evidence

If evidence is not relevant it is not admissible at trial.  So what exactly is relevant evidence in a personal injury lawsuit?  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, providing a concise and useful definition.
In today’s case (Beazley v. Suzuki Motor Corporation) the Plaintiff was injured while involved in a single vehicle accident involving a Geo Tracker.  The lawsuit focused on whether the Tracker was safely designed.   In support of her case the Plaintiff wished to put hundreds of documents into evidence.  The Defendants objected to some of these arguing that they were not relevant.
Mr. Justice Goepel went through the objections one by one and ruled that some of the documents were relevant and some were not.  Before reaching his decisions Mr. Justice Goepel provided the following useful definition of relevant evidence:

[15] To be admissible, evidence must be relevant to the facts in issue and not subject to exclusion under any other rule of law or policy.  Evidence is relevant “where it has some tendency as a matter of logic and human experience to make the proposition for which it is advanced more likely than the proposition would appear to be in the absence of that evidence” ( D.M. Paciocco & L. Stuesser, The Law of Evidence (Toronto: Irwin Law,1996) at 19).

[16] In a civil case, the facts in issue are established by the pleadings.  Evidence unrelated to the issues as disclosed in the pleadings is not admissible.

[17] Not all relevant evidence is admissible.  The court must also balance the cost to the trial the process of admitting the evidence.  The judge’s task was described by Sopinka J. in R. v. Mohan, [1994] 2 S.C.R. 9 at 20-21:

Relevance is a matter to be decided by a judge as question of law. Although prima facie admissible if so related to a fact in issue that it tends to establish it, that does not end the inquiry. This merely determines the logical relevance of the evidence. Other considerations enter into the decision as to admissibility. This further inquiry may be described as a cost benefit analysis, that is “whether its value is worth what it costs.” See McCormick on Evidence (3rd ed. 1984), at p. 544. Cost in this context is not used in its traditional economic sense but rather in terms of its impact on the trial process. Evidence that is otherwise logically relevant may be excluded on this basis, if its probative value is overborne by its prejudicial effect, if it involves an inordinate amount of time which is not commensurate with its value or if it is misleading in the sense that its effect on the trier of fact, particularly a jury, is out of proportion to its reliability. While frequently considered as an aspect of legal relevance, the exclusion of logically relevant evidence on these grounds is more properly regarded as a general exclusionary rule (see Morris v. The Queen, [1983] 2 S.C.R. 190). Whether it is treated as an aspect of relevance or an exclusionary rule, the effect is the same.

[18] While the above passage was written in the context of the admissibility of expert evidence, the same principles must be considered in determining the admissibility of any form of evidence.

More on BC Personal Injury Claims and Radiologists Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:





[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident.  This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court.  In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.


[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

_______________________________________________________________________________________________

In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

BC Court of Appeal Finds Cyclist 50% at Fault for "Cycling Between Lanes"


Reasons for judgement were released today by the BC Court of Appeal addressing the issue of fault for a cyclist involved in an intersection crash.
In today’s case (MacLaren v. Kucharek) the Plaintiff cyclist was injured when he was travelling through an intersection in Surrey BC when he was struck by a left hand turning vehicle approaching from the opposite direction.  At  trial the driver of the vehicle was found 100% at fault.  The vehicle operator appealed and the BC High Court overturned the trial judgement and found the cyclist 50% at fault.
The roadway the cyclist was travelling on had one marked lane but as it approached the intersection it “widens…(and) although unmarked as two lanes, there is sufficient room for two vehicles to travel abreast within the one marked lane.”  Critical to the Court’s judgement was a finding that although unmarked, the roadway had “two de facto lanes” just prior to the intersection.
It was accepted that vehicles that drove in the right of these two defacto lanes were right turning vehicles. Vehicles that intended to drive straight through the intersection stayed in the left hand portion of the wide lane.  As the cyclist approached the intersection a vehicle in front of him in his direction fo travel stopped and left a “gap in the traffic lined up behind the intersection“.  The Plaintiff passed this traffic on the right and entered the intersection (basically travelling down the centre of these two defacto lanes).  At the same time the Defendant made a left hand turn into the intersection resulting in collision.  The Defendant testified that he never saw the cyclist prior to the crash.
The driver was found at fault for failing to see the cyclist.  In finding the cyclist 50% at fault the BC Court of Appeal provide the following reasons:
The question that arises, however, is whether Mr. MacLaren should have “taken the lane”; that is, ridden behind the other traffic in the lane, rather than do what he did which was to put himself beside vehicles in that lane and to pass them on the right…

…In my view it is not so much that Mr. MacLaren was passing on the right when he was struck by the appellant, but that he was riding between what were effectively two lanes of travel before entering the Laurel Drive intersection.  In my view, s. 183(2)(c) (which required him to ride as near as practicable to the right side of the highway), did not authorize him to ride between two lanes of travel.  For Mr. MacLaren to ride between two unmarked but commonly travelled lanes immediately prior to reaching the Laurel Drive intersection was dangerous because a northbound left-turning driver would have little opportunity to see him as he cycled alongside vehicles to his left.  In my view, given the configuration of the roadway and the pattern of traffic in this case, for Mr. MacLaren to cycle alongside vehicles to his left created a danger both to himself and to the appellant.

[29] While Mr. MacLaren did the right thing by moving out of the curb lane, he should have moved in behind the vehicles travelling toward the “through” lane, not beside them.  By cycling between lanes Mr. MacLaren did not show sufficient care for his own person to avoid a finding of contributory negligence.  Taking a lane was the only way, in my view, that a bicyclist could have satisfied the mandate of s. 183(2)(c) to safely travel as near as practicable to the right of the highway…

I am of the view that the trial judge erred in failing to conclude that Mr. MacLaren, in choosing to ride in between the two travel lanes and beside the stopped pick-up rather than in the lane of travel behind it, did not take reasonable care for his own safety.  His failure to take reasonable care for his own safety was one of the causes of the accident.  Mr. MacLaren was therefore contributorily negligent.

More on BC Injury Claims and Biomechanical Engineering Evidence


Further to my recent post on this topic, the evidence of biomechanical engineers is becoming more common in BC injury lawsuits.
Biomechanics is the study of forces applied to biological tissue and the injuries that can result from such forces.  In litigation it is easy to imagine the use such expert opinion evidence can be put to in proving causation of injuries.
Biomechanics is a relatively new scientific field.  Courts are generally conservative and can be slow to accept ‘novel‘ scientific evidence.  Despite judicial conservatism, biomechanical evidence does appear to be gaining acceptance by BC Courts as demonstrated in reasons for judgment released today.
In today’s case (More v. Bauer) the Plaintiff suffered a severe brain injury while playing hockey.  The Plaintiff claimed his helmet was negligently designed and sued the manufacturers of the helmet.  In support of his claim he called a biomechanical engineer who gave evidence in the field of biomechanics and the biomechanics of safety standards.
The Defendants did not challenge his qualifications to give this evidence, however, at the conclusion of the expert’s testimony the Defendants brought a motion to rule the testimony inadmissible arguing that the expert’s “underlying methodology and science are so flawed that the evidence (does not meet the legal test for admissibility)” and that the expert was “biased and purposely misled the court to assist the plaintiff“.
Mr. Justice Macaulay rejected the motion and concluded that the evidence was in fact admissible.  In doing so the Court recognized biomechanics as an “accepted area of scientific and academic expertise“.  The Court reasoned as follows:
[1] Dr. Stalnaker has a Ph.D. in theoretical and applied mechanics. Through much of his lengthy career, he has worked in the branch field of biomechanics. He also has practical experience in standards development for certification purposes although not specifically with regard to hockey helmet standards. Biomechanics involves the study of body kinematics ? the forces applied to biological tissue and the injuries that can result. The plaintiffs sought to qualify Dr. Stalnaker as an expert in biomechanics and the biomechanics of safety standards…

[12] Mohan sets out the current approach to the admissibility of expert evidence. Mr. Justice Sopinka outlines the following criteria for the admissibility of opinion evidence:

(1)      the evidence must be relevant to some issue in the case;

(2)      the evidence must be necessary to assist the trier of fact;

(3)      the evidence must not contravene an exclusionary rule; and

(4)      the witness must be a properly qualified expert.

[15] Assessing reliability includes determining whether the science or technique the witness uses to reach a conclusion is “novel”. Novel science will be subject to a stricter level of scrutiny than theories or techniques that are more generally accepted…

[23] To conclude, in assessing reliability when exercising my gatekeeper role, I must determine whether the approach the impugned expert takes is novel. If Dr. Stalnaker is relying on a novel theory or technique, I should exercise a higher level of scrutiny when examining reliability, in order to prevent the trial becoming “a medical or scientific convention with an exchange of highly speculative points of view” (R. v. J.E.T. at para. 77).

[24] In assessing reliability, I may find the Daubert factors helpful, but need not apply them too strictly. The purpose of applying the factors is to determine the degree of uncertainty present in the impugned expert’s analysis. The question is whether “the degree of uncertainty is unacceptable given the likely effect upon the trial process and the trier of fact. The level of acceptable uncertainty may depend upon the purpose for which the evidence is tendered and the use made of the evidence by other experts” (Wolfin at para. 20). Both the mode of trial and the importance of the evidence to making a final determination of the matter are factors to consider. If a theory or technique is implausible it will not be admitted.

[25] I remain persuaded that biomechanics is a recognized and accepted area of scientific and academic expertise. I am satisfied that Dr. Stalnaker is qualified to give opinion evidence in the area of biomechanics including in relation to safety standards. Opinion evidence is necessary to assist me in drawing appropriate inferences of fact.

$75,000 Non-Pecuniary Damages for Chronic Shoulder Injury


Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, awarding a plaintiff just over $137,000 in damages as a result of a BC car crash.
In today’s case (Moussa v. Awwad) the Plaintiff was injured in a roll over accident.  She was a passenger at the time.   The driver lost control of the vehicle and “swerved across the two eastbound lanes, then off the highway and into the ditch separating the east and westbound lanes of traffic, flipping at least once, landing on the roof, and flipping back onto its wheels, this time facing west. By the time the defendant’s vehicle came to a rest, the roof was crushed and the car windows were shattered.
ICBC admitted fault on behalf of the driver focusing the trial on the value of the Plaintiff’s claim.
The Plaintiff suffered various soft tissue injuries which improved.  His most serious injury was shoulder pain which caused restrictions and was not expected to recover.  In valuing the Plaintiff’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) at $75,000 Madam Justice Russell provide the following analysis:

I find that the plaintiff sustained injuries to his neck, left shoulder and left arm as a result of the Accident. While most of the injuries have resolved, the plaintiff continues to suffer pain and limitations with respect to his left shoulder. Various areas of the left shoulder have been implicated, including the AC joint, rotator cuff, and coracoid process. Although there was great confusion in the medical evidence about the mechanics of the injury to the plaintiff’s shoulder, whatever the mechanism of the injury, and in light of my finding that there was no intervening event, I am satisfied on a balance of probabilities that the ongoing symptoms in the plaintiff’s left shoulder were caused by the April 2004 Accident.

[154] None of the medical experts gave a positive prognosis of recovery or even improvement, and none could suggest further intervention or treatment that could contribute to a better prognosis for recovery. The plaintiff will, therefore, continue to face limitations and disabling symptoms related to pain in his left shoulder as a result of the Accident…

[160] The purpose of non-pecuniary damages is to compensate the plaintiff for losses such as pain, suffering, disability, inconvenience and loss of enjoyment of life from the time of the Accident for as long as such losses will likely continue. In Stapley v. Hejslet, 2006 BCCA 34 at para. 45, 263 D.L.R. (4th) 19, the majority of the Court of Appeal emphasized that:

… the amount of an award for non-pecuniary damage should not depend alone upon the seriousness of the injury but upon its ability to ameliorate the condition of the victim considering his or her particular situation. … An award will vary in each case ‘to meet the specific circumstances of the individual case’.

[161] The Accident has impacted the plaintiff’s life profoundly. In the months immediately following the Accident, the plaintiff experienced flashbacks, intense pain and had difficulty sleeping. After the acute pain passed, the plaintiff continued to suffer from increases in pain when working and difficulty sleeping. To try to redress this, he underwent surgery, which was frightening for him, and required further rehabilitation. However, in the long run the surgery was not successful, his pain continued, and his prognosis for recovery is not good.

[162] Aside from pain, the plaintiff has experienced a loss of enjoyment of life. The plaintiff does not travel because it is difficult to carry or manage his luggage, he no longer engages in many of his recreational activities, he has experienced a great deal of emotional difficulty and he continues to restrict situations in which he may find himself a passenger in another vehicle.

[163] The plaintiff’s most significant limitation is related to work because he remains unable to work consistently and for extended periods of time at a computer and his discomfort and disability are directly proportional to the amount of time that he spends at the computer or operating a video camera. The plaintiff enjoyed his work and his career was a source of pride for him. Now his enjoyment of his work is undermined by his ongoing pain and disability…

166] In light of the injuries sustained by the plaintiff in the Accident and the negative prognoses contained in the medical evidence, I find the plaintiff is entitled to an award of $75,000 for general damages.

You can click here to access my archived summary of other recent BC Claims dealing with shoulder injuries.

BC Civil Sexual Assault Lawsuits Part 3 – Non-Pecuniary Damages

Further to my recent posts on BC civil sexual assault claims addressing limitation periods and vicarious liability, I will now address another topic in this unique area of law – the assessment of non-pecuniary damages.
Non-pecuniary damage” is the legal phrase that describes compensation for pain and suffering and loss of enjoyment of life.  When a person is harmed at the hands of others, be it intentionally or negligently, the harmed individual is usually able to claim compensation for their losses including for non-pecuniary loss.  Some of the factors that go into valuing non-pecuniary loss in British Columbia are discussed here.
Historically there was no ceiling in the amount of money that could be awarded to an injured plaintiff for non-pecuniary loss in Canada.  This changed, however, in 1978 when the Supreme Court of Canada heard a “Trilogy” of cases and handed down a significant decision which held that there should be a cap on Canadian awards for non-pecuniary damages.  Specifically the Canadian high court held that “Save in exceptional circumstances…an upper limit of non-pecuniary loss”  should be set at $100,000.
This cap on non-pecuniary damages has been the subject of much criticism and recent court challenges, however, none of this has resulted in change.  Unless there is legislative intervention or a reversal by the Supreme Court of Canada this cap will continue to remain in place.  This figure has been subject to inflation and now, in 2010, the rough upper limit is set at approximately $320,000.
With that introduction out of the way that brings me to today’s topic.  Does this ceiling for non-pecuniary damages apply to civil sexual assault cases?  The answer is no and this was made clear by the BC Court of Appeal in a case named S.Y. v. F.G.C.
In the S.Y case the Plaintiff was the victim of sexual abuse.   At trial a Jury awarded her $650,000 including $350,000 for non-pecuniary and aggravated damages.  This amount greatly exceeded the Canadian cap on non-pecuniary damages which was at $260,000 at the time.
The Defendant appealed arguing that non-pecuniary damages in sex assault cases are caught by the trilogy therefore the Jury’s award was in excess of what was permitted by law.  The BC Court of Appeal disagreed with this submission and made it clear that in British Columbia victims of sexual abuse are not caught by the Canadian cap on non-pecuniary damage awards.  Specifically the Court held as follows:
I am not persuaded that the policy reasons which gave rise to the imposition of a cap in “the trilogy” have any application in a case of the type at bar…The policy considerations which arise from negligence causing catastrophic personal injuries, in the contexts of accident and medical malpractice, do not arise from intentional torts involving criminal behaviour…A cap is not needed to protect the general public from a serious social burden, such as enormous insurance premiums.  Insofar as damage awards may be so high as to be wholly erroneous, or wholly disproportionate, an appellate court may intervene to correct disparity, and to foster consistency…In some cases, sexual abuse victims may require and deserve more than the “cap” allows, due to the unpredictable impact of the tort on their lives.  Judges, juries and appellate courts are in a position to decide what is fair and reasonable to both parties according to the circumstances of the case.
Just as with limitation periods and the principles of vicarious liability, the law of non-pecuniary damages in sexual assault claims in BC recognizes that these cases are unique and certain advantages are provided in prosecuting such claims in the Civil Courts.

Document Disclosure and Litigation Privilege – A Potentially Difficult Test to Meet

Further to my previous posts on the topic of ICBC Claims and Privilege, reasons for judgement were released yesterday by the BC Supreme Court, New Westminster Registry, demonstrating that a party seeking to withhold documents on the basis of ‘litigation privilege’ may face an uphill battle.
In yesterday’s case (Celli v. White) the Plaintiff was a pedestrian who was struck by a vehicle.  The Plaintiff was injured and eventually sued for damages.  In the course of the lawsuit the Defendants refused to produce a number of documents relevant to the Plaintiff’s Claim on the basis that they were protected by ‘litigation privilege‘.
The Plaintiff obtained legal advice almost immediately after the accident.  As a result of this the defence lawyers argued that “litigation was inevitable from the outset.”  On this basis the Defendant refused to produce a number of documents which were gathered by the Defendant’s insurer in the immediate aftermath of this collision.
The Plaintiff applied to Court for production of a number of the allegedly privileged documents.  The Plaintiff was largely successful and the Defendants were ordered to produce a number of documents which were gathered by the Defendants insurer in the 6 months following the collision.  In reaching this decision Master Caldwell summarized the law of litigation privilege in the context of BC Injury Claims as follows:

[8] The leading case in this subject area is Hamalainen v. Sippola (1991), 62 B.C.L.R. (2d) 254 [Hamalainen].  In that case the Court of Appeal held that two factual determinations were required in order to uphold a claim of litigation privilege:

(1)        Was litigation in reasonable prospect at the time the document was produced,

(2)        If so, what was the dominant purpose for its production?

[9] The court indicated that while the first of these requirements would not likely be overly difficult to establish, the second would be more challenging:

22.       I am not aware of any case in which the meaning of “in reasonable prospect” has been considered by this Court. Common sense suggests that it must mean something more than a mere possibility, for such possibility must necessarily exist in every claim for loss due to injury whether that claim be advanced in tort or in contract. On the other hand, a reasonable prospect clearly does not mean a certainty, which could hardly ever be established unless a writ had actually issued. In my view litigation can properly be said to be in reasonable prospect when a reasonable person, possessed of all pertinent information including that peculiar to one party or the other, would conclude it is unlikely that the claim for loss will be resolved without it. The test is not one that will be particularly difficult to meet. I am satisfied it was met in this case in connection with all of the documents in issue. The circumstances of this accident, and the nature of Mr. Hamalainen’s injuries, were such that litigation was clearly a reasonable prospect from the time the claim was first reported on December 1st, 1986.

(b)        What was the dominant purpose for which the documents were produced?

23.       A more difficult question to resolve is whether the dominant purpose of the author, or the person under whose direction each document was prepared, was “… [to use] it or its contents in order to obtain legal advice or to conduct or aid in the conduct of litigation …”.

24.       When this Court adopted the dominant purpose test, it did so in response to a similar move by the House of Lords in Waugh v. British Railways Board, [1980] A.C. 521. In that case the majority opinion is to be found in the speech of Lord Wilberforce, who agreed “in substance” with the dissenting judgment of Lord Denning M.R. in the Court below. While the Court of Appeal judgments do not appear to have been reported, some excerpts from Lord Denning’s opinion are to be found in the speech of Lord Edmund-Davies, including the following at p. 541 of the report:

If material comes into being for a dual purpose – one to find out the cause of the accident – the other to furnish information to the solicitor – it should be disclosed, because it is not then “wholly or mainly” for litigation. On this basis all the reports and inquiries into accidents – which are made shortly after the accident – should be disclosed on discovery and made available in evidence at the trial.

25.       At the heart of the issue in the British Railways Board case was the fact that there was more than one identifiable purpose for the production of the report for which privilege was claimed. The result of the decision was to reject both the substantial purpose test previously adhered to by the English Court of Appeal and the sole purpose test which by then had been adopted by the majority of the Australian High Court in Grant v. Downs.

26.       Even in cases where litigation is in reasonable prospect from the time a claim first arises, there is bound to be a preliminary period during which the parties are attempting to discover the cause of the accident on which it is based. At some point in the information gathering process the focus of such an inquiry will shift such that its dominant purpose will become that of preparing the party for whom it was conducted for the anticipated litigation. In other words, there is a continuum which begins with the incident giving rise to the claim and during which the focus of the inquiry changes. At what point the dominant purpose becomes that of furthering the course of litigation will necessarily fall to be determined by the facts peculiar to each case.

27.       In that sense there is obviously no absolute rule that the decision to deny liability in such a claim must mark the point in which the conduct of litigation becomes the dominant purpose underlying the production of each and every document of the sort for which privilege was claimed in this case. But I do not read the master’s reasons as invoking any such absolute rule. He was faced with affidavit material filed by the party claiming privilege which was deficient in a number of respects. As already noted it failed to draw any distinction between the purpose underlying the production of individual documents. The risk inherent in that approach was pointed out by Mr. Justice Esson in the Shaughnessy Golf case at p. 319 of the report:

Privilege was claimed for a large number of documents. The grounds for it had to be established in respect of each one. By trying to extend to the whole list the considerations which confer privilege on most of the documents, the plaintiff has confused the issue and created the risk that, because it did not make in its evidence the distinctions that could have been made, it must be held not to have established privilege for any.

28.       Furthermore, the affidavit material concentrated on the repetitious assertion by each deponent of his belief that litigation in the case was inevitable, from which fact the dominant purpose underlying the production of all documents was apparently assumed. As already pointed out that approach to the onus facing the deponent on this question represented a mistaken view of the law.

[10] Gray J. echoed this sentiment at paragraphs 97 and 98 of Keefer Laundry Ltd. v. Pellerin Milnor Corp., 2006 BCSC 1180 as follows:

97.       The first requirement will not usually be difficult to meet.  Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola, supra.)

98.       To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.

[11] This dominant purpose test was also confirmed by Fish J. in the case of Blank v. Canada (Minister of Justice), 2006 SCC 39 at paragraphs 60 and 61:

60. I see no reason to depart from the dominant purpose test. Though it provides narrower protection than would a substantial purpose test, the dominant purpose standard appears to me consistent with the notion that the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure. As Royer has noted, it is hardly surprising that modern legislation and case law

[TRANSLATION] which increasingly attenuate the purely accusatory and adversarial nature of the civil trial, tend to limit the scope of this privilege [that is, the litigation privilege]. [para. 1139]

Or, as Carthy J.A. stated in Chrusz:

The modern trend is in the direction of complete discovery and there is no apparent reason to inhibit that trend so long as counsel is left with sufficient flexibility to adequately serve the litigation client. [p. 331]

61. While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process. In this context, it would be incongruous to reverse that trend and revert to a substantial purpose test.

In ordering that the Defendants produce the relevant documents the Court held that the dominant purpose of much of the defendants insurer’s early investigations was due to ‘adjusting‘ the potential claims as opposed to in response to anticipated ‘litigation‘.

Since ICBC is a monopoly insurer in British Columbia the analysis of the ‘adjusting‘ phase vs. the ‘litigation‘ stage will be triggered in most multi-party motor vehicle collisions.  The lesson to be learned is that many documents which are gathered by ICBC in the early stages which may prove harmful to a Defendant if disclosed may not be protected by privilege if they were gathered by for the dominant purpose of determining how a collision occurred.

Can a Defendant Force a Case Into Rule 68?


Interesting reasons were released yesterday by the BC Supreme Court, Vancouver Registry, dealing with a unique issue; can a Defendant force a case into Rule 68 against the Plaintiff’s wishes?
By way of brief background Rule 68 is the ‘proportionality‘ rule and is mandatory for all injury cases under $100,000.
In British Columbia Plaintiff’s don’t need to plead the value of their claim.  Ultimately only the Plaintiff knows what final number they will be seeking at trial and this information does not have to be shared with the Defendant ahead of time.  Appreciating this, can a Plaintiff simply defeat a Defence application to put a case into Rule 68 by claiming he will seek more than $100,000 in total damages at trial?
In today’s case (Singleton v. O’Neil) this issue was dealt with.  The Plaintiff sued for damages as a result of an alleged assault which occurred on July 11, 2009.  He prosecuted his claim in the usual course (outside of Rule 68) and set the matter for a 5 day Jury Trial.   The Defendant’s opposed this and brought a motion to force the case into Rule 68 saying it was clearly worth less than $100,000 and that the rule was mandatory in these circumstances.  The Plaintiff opposed arguing that he is claiming in excess of $100,000.
Madam Justice Gerow granted the motion finding that the case was likely worth less than $100,000 and cannot “justify the expense of a five day jury trial“.  The Court provided the following reasons:

[13] Mr. Singleton did not provide any authorities which support his position that an award for the types of injuries he suffered and his treatment by the defendants will exceed $100,000. As well, he has not presented any authority for his position that it is the plaintiff who determines whether the claim should be brought under Rule 68. I note that there appears to be no such limitation in the rules. Rule 68(7) provides that on the application of any party, or as result of the court’s own application, an order may be made that the rule does not apply to an action. In other words, it is not up to only one of the parties to determine whether or not Rule 68 applies.

[14] The rule is mandatory in nature and applies to all claims which fall into subrule (2). In my view, the evidence to date and the case law to which I have been referred, supports the defendants’ position that the claim being advanced by Mr. Singleton is one which falls within Rule 68. Most of the pre-trial procedure has been completed, and the examinations for discovery which have been conducted have fallen within the time limits set out in Rule 68. Neither the plaintiff nor the defendants are suggesting they will require experts in addition to those allowed under the rule.

[15] As set out in subrule (13), the overarching consideration in determining applications under Rule 68 is proportionality. The court must consider what is reasonable in relation to the amount at issue in the action.

[16] As in Berenjian and Uribe v. Magnus, 2009 BCSC 1230, a jury trial is being sought by the party opposing the application for an order that the matter falls within Rule 68. Based on the affidavit material, I have concluded that the claim being advanced by Mr. Singleton is relatively simple and straightforward, and is not one that can justify the expense of a five day jury trial.

[17] For the forgoing reasons, I have determined it is appropriate to make the order sought by the defendants. Accordingly, I am making an order that this matter proceed under Rule 68, and the trial be before a judge alone.

This is an interesting judgement because it seems to require that a Plaintiff adduce evidence of the likely value of their claim to defeat such a motion.

As readers of this blog know the New BC Supreme Court Civil Rules come into force on July 1, 2010.  Rule 68 is repealed under the new rules but parts of it survive in Rule 15.  I’ve previously written about this and you can find my analysis here.  In short, Rule 15 incorporates the mandatory language of Rule 68 for personal injury claims under $100,000 so this case will likely retain its value as a precedent after the new rules take effect.

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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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