Tag: bc injury law

Non-Pecuniary Damage Awards Discussed for Chronic Pain with Pre-Existing Depression


Pre-existing medical difficulties can and do play a role in the process of awarding a Plaintiff damages for pain and suffering and loss of enjoyment of life (non-pecuniary damages).  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, discussing this area of law.
In today’s case (Beaudry v. Kishigweb) the Plaintiff’s vehicle was rear-ended by a 1/2 ton pick-up truck.  Fault was admitted for the crash.   The Plaintiff sustained a variety of soft tissue injuries affecting her neck, upper back and lower back.  These went on to cause chronic pain and headaches and the Plaintiff never fully recovered from the consequences of her injuries.
Prior to the accident the Plaintiff suffered from some medical difficulties and these included a chronic low grade depression.  Her pre-accident health made her more vulnerable to having a poor outcome following the accident.  The Defendant, who basically conceded that the Plaintiff did suffer from chronic pain as a result of the collision, argued that “whether or not the Plaintiff was a vulnerable individual (as a result of pre-existing conditions), she cannot be put back to a better position than she would have been had the accident not occurred“.
The Court went on to find that the accident did cause chronic pain which was not resolved at the time of trial.  The Court further found that the chronic pain would continue into the future, however, it would not prevent the Plaintiff from working full time or from carrying out her household responsibilities.  In awarding the Plaintiff $85,000 for her non-pecuniary damages Mr. Justice Rice made the following comments about damages for non-pecuniary loss for chronic pain with pre-existing difficulties:

[25]         The difficulty of assessing damages for soft-tissue injuries where the plaintiff has a complicated psychological and behavioural background is described in Rod v. Greco, 2003 BCSC 935, at para. 35:

As to physical injuries, because of the mechanics of the motor vehicle accident [the plaintiff’s vehicle was rear-ended] some must have been sustained by the plaintiff.  However, the complex psychological and behavioural history both pre and post accident outlined above made it difficult to identify them with any precision.

[34]         With the virtual admission by the defendants that the plaintiff now suffers from chronic pain, I must first of all decide what the condition of the plaintiff was just before the accident.  Clearly she was not in the best of shape and that must be taken into account.  She was susceptible to pain and worse, depression, some of which could be said was the result of lifestyle mistakes made in the past.  Having recovered from most of those, I agree that it is not fair to reduce what she would otherwise receive simply on the basis of a greater susceptibility because of her past.  On the other hand, to the extent that those past experiences would have revisited her earlier in life than is normal, account must be taken of that too.

[35]         Considering the whole of the evidence, I find that, indeed, the plaintiff suffers chronic pain as a result of the collision.  I award her $85,000 in non-pecuniary damages.

How Do BC Courts Determine Fault for a Crash?: The "But For" Test


When suing someone for damages as a result of a BC motor vehicle collision it is important to understand how our Courts establish who is at fault.
BC Courts must, in most circumstances, use the “but for” test.  In the most basic terms, a driver has to exhibit some level of carelessness.  From there a Judge (or Jury) must ask themselves if “but for the carelessness the collision would not have occurred“.  If the answer is yes then the careless party must be found, at least partially, to blame for the accident.  This week the BC Court of Appeal discussed this area of law.
In this week’s case (Skinner v. Fu) the Defendant was driving a vehicle on a well travelled BC highway and came to a stop because a dead animal was in his lane.  It was dark and the Defendant remained stopped for a period of time.  The speed limit was 90 kilometers per hour.  He did not activate his brake lights or emergency flashers.  The Plaintiff, approaching from the same direction of travel, failed to realize that the Defendant’s vehicle was stationary and this resulted in a rear-end collision.
The Plaintiff sued for damages.  His claim was dismissed at trial with the Judge holding that while the Defendant was careless his carelessness was not the ‘proximate cause‘ of the crash.  (You can click here to read article discussing the trial judgement) The Plaintiff appealed and succeeded.  The BC High Court ordered a new trial finding that the trial Judge failed to use the “but for” test in determining fault.  In ordering a new trial the BC Court of Appeal set out the following useful discussion on the issue of fault for BC Motor Vehicle Collisions:

[16]         I now turn to the legal test to establish causation.  In Resurfice Corp. v. Hanke, [2007] 1 S.C.R. 333, 2007 SCC 7, the Supreme Court of Canada reaffirmed that the default test to establish causation in a negligence analysis remains the “but for” test.  The question is whether, but for the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  At para. 21 of Resurfice, the Chief Justice said:

First, the basic test for determining causation remains the “but for” test.  This applies to multi-cause injuries.  The plaintiff bears the burden of showing that “but for” the negligent act or omission of each defendant, the injury would not have occurred.  Having done this, contributory negligence may be apportioned, as permitted by statute.

[17]         The Supreme Court’s articulation of the “but for” test might usefully be contrasted with the judge’s analysis, in this case, in which he posed the following question at para. 9:

… In determining the issue of liability for the accident, I must determine whether the negligence of the defendant was the proximate cause or materially contributed to the occurrence of the collision.

[18]         In my view the judge erred in the way he framed the analysis.  “Proximate cause” or “effective cause” are sometimes confusing terms.

[19]         The use and misuse of the term “proximate cause” was discussed by Smith J.A. in Chambers v. Goertz, 2009 BCCA 358, 275 B.C.A.C. 68 at para. 29:

“Proximate cause” is a phrase ill-suited to the task of identifying culpable causes in negligence.  It implies that the law recognizes only one cause and that this sole cause must be close in time and space to the event.  As I have explained, these implications are not correct – every event has multiple historical factual causes.  The phrase “proximate cause” is most often used in tort law synonymously with “remoteness”, that is, “to inject some degree of restraint on the potential reach of causation”: R. v. Goldhart, at para. 36.  It suggests a limit on the scope of liability.  There is also a doctrine of proximate cause in insurance law, where the term has been used to signify the main or dominant or effective cause of a loss, since the insurer has contracted to pay for the loss only if, or unless, it was caused by an event specified in the insurance policy.  It must be noted that the term’s usefulness in insurance law has also been questioned: see C.C.R. Fishing Ltd. v. British Reserve Insurance Co., [1990] 1 S.C.R. 814 at 823, 69 D.L.R. (4th) 112, [1990] 3 W.W.R. 501; Derksen v. 539938 Ontario Ltd., 2001 SCC 72, [2001] 3 S.C.R. 398 at para. 36, 205 D.L.R. (4th) 1.

[20]         The judge’s use of the term “proximate cause” in this case, diverted the analysis from the correct approach, the “but for” test.  The judge must have employed a last clear chance analysis when he used the term “proximate”.  That term implies a finding of no liability based on a determination that the appellant could have entirely avoided the accident if only he had been more attentive to the road ahead of him.  The judge found that the defendant was negligent.  Indeed he could hardly have found otherwise.  The respondent did create an unreasonable risk of harm by remaining stationary in the way he did.

[21]         The judgment in Resurfice Corp. v. Hanke refines the test of causation and reminds us that the defendant’s breach of the standard of care need only be a cause of the plaintiff’s injury and not the sole cause (see also Athey v. Leonati, [1996] 3 S.C.R. 458).  There may exist other causes that materially contributed to the injury, but that does not relieve the defendant of liability.  In such circumstances, relief from liability follows only if the defendant’s breach of his standard of care did not materially contribute to the plaintiff’s injury.  The analysis should be focused on the question: “but for” the defendant’s breach of the standard of care, would the plaintiff have suffered damage?  Here the judge did use the term “materially contributed” at paragraph 9, as set out above, but I conclude that he used the term synonymously with “proximate cause”.  I reach this conclusion because he did not analyze the facts consistently with the Athey material contribution test but rather in the proximate or only one cause analysis that was criticized in Chambers.

[22]         In summary, it is my view that the judge erred by focusing his inquiry on the conduct of the appellant to the exclusion of the admitted negligence of the respondent.  That inquiry properly was one of apportionment, but the judge neglected the essential underlying inquiry into the respondent’s negligence, and whether it was connected causally to the appellant’s injury (Resurfice at para. 23).  The judge erred in failing to consider whether the respondent’s conduct created an unreasonable risk of harm and secondly, in failing to apply the “but for” analysis.  If he had done so, he would have had to conclude that the respondent’s breach of the reasonable standard of care was a cause of the accident.

[23]         This is not to say that there is anything wrong with the generally accepted rule that following drivers will usually be at fault for failing to avoid a collision with a vehicle that has stopped quickly in front (Ayers v. Singh, 85 B.C.A.C. 307, [1997] B.C.J. No. 350).  Normally a sudden stop does not create an unreasonable risk of harm.  However, here the respondent’s act of remaining stationary, in the dark, on a well-traveled highway, where the speed limit was 90 kilometres per hour, without activating either brake lights or emergency flashers, did create an unreasonable risk of harm as that term was used by the Chief Justice in Lawrence.

[24]         I would order a new trial because the necessary findings of fact that would enable this court to determine, and if necessary apportion, fault have not been made.

If you are thinking of bringing a claim for compensation for personal injuries you should first ask yourself “did the other party do something wrong?”.  From there you need to ask “but for that wrongful act, the injury would not have occurred?“.  If the answer is yes then you have a theory on which to advance your case.

More on ICBC Injury Claims and Plaintiff Credibility

As I’ve previously written, Plaintiff credibility plays an important role in most personal injury lawsuits.  This is particularly true in soft tissue injury cases.  Reasons for judgement were released today by the BC Supreme Court highlighting the impact that an adverse finding of credibility can have on a claim.
In today’s case (Sarowa v. Gill) the Plaintiff was injured in a 2006 motor vehicle collision in the lower mainland.  The defendant lost control of his vehicle and entered the Plaintiff’s lane of travel causing an impact which resulted in “significant damage” to the Plaintiff’s vehicle.  Fault was admitted focusing the trial on the value of the Plaintiff’s personal injury claim.
The Plaintiff gave evidence that that she suffered various soft tissue injuries which continued to bother her by the time of trial.  This was supported by the evidence of a physiatrist.  However, the Physiatrists evidence was not accepted by the Court because of  “deficiencies, omissions, and factual errors in (the doctor’s) report“.
Instead the Court preferred the evidence of Dr. Boyle, an orthopaedic surgeon ICBC arranged for the Plaintiff to see.  Dr. Boyle’s evidence included the following damaging observations:
Dr. Boyle’s opinion was that she had suffered a myofascial strain of the cervical and lumbar muscles as a result of the accident, but that the injury was mild.  He observed Ms. Sarowa to display exaggerated “pain behaviour” throughout the interview and examination.  He noted that she moaned, groaned and grimaced.  He said that patients who are in pain generally avoid a lot of movement in order to avoid discomfort, but Ms. Sarowa was restless.  When she was specifically asked to demonstrate range of motion it appeared quite limited, but she demonstrated a much freer range of motion spontaneously during the interview and other parts of his assessment.  He said that she could freely straight-leg raise from a sitting position, but couldn’t bend forward when standing ? an inconsistent presentation from an anatomical point of view.
The Court went onto to award little in the way of damages and in doing so made the following findings about the Plaintiff’s credibility:

[68]         Ms. Sarowa testified that she has not fully recovered from her accident injuries and continues to have neck and back discomfort, and frequent headaches.  As is usually the case, much of the plaintiff’s case rests on the extent to which the plaintiff is found to be a credible witness.  In this case, Ms. Sarowa was a less than satisfactory witness.  She was frequently evasive and non-responsive.  She was unable, or declined, to explain why she had claimed to be separated from her husband on December 31, 2007 when filing her 2007 tax return; but claimed at trial that she and her husband were back together at that time.

[69]         If she was being truthful at trial about the severity and duration of her accident injuries, than I would have to conclude that she omitted relevant information about her health when she applied for the job at Tim Horton’s in April 2007, and was deliberately untruthful when she applied for work at Brinks in September 2008.  I think it more likely that she was exaggerating the severity and duration of her injuries when testifying here at trial; as the evidence of her employers at Tim Horton’s and Brinks indicates she did not, in fact, demonstrate any difficulty with the physical performance of her job duties.

For those interested in this topic, this case is worth reviewing in full to get a sense of some of the factors courts look to when weighing a Plaintiff’s credibility in a soft tissue injury prosecution.

Can Interest on Unpaid Special Damages be Recovered in a Personal Injury Claim?


Special damages are out of pocket expenses incurred as a result of the intentional or negligent actions of others.  In personal injury lawsuits the most common special damages relate to medical treatments such as physiotherapy, massage therapy, medications and similar expenses.
When a Plaintiff pays their own special damages and succeeds at trial they are entitled to be reimbursed for these expenses along with a modest amount of interest under the Court Order Interest Act.  What about expenses that were not paid before trial where the medical providers charge interest on the unpaid accounts?  Can a plaintiff recover damages for these additional expenses?  Reasons for judgement were released today by the BC Supreme Court considering this issue.
In today’s case (Bortnik v. Gutierrez) the Plaintiff sued for injuries sustained as a result of a 2007 BC motor vehicle collision.  Mr. Justice Myers found that the Plaintiff had “exaggerated his injuries“.  Despite this finding the Court concluded that the Plaintiff suffered “some minor whiplash injuries as a result of the accident” and awarded the Plaintiff $20,000 for his non-pecuniary damages.
The Plaintiff also was awarded damages to account for the expenses related to some of his post accident chiropractic treatments.  The plaintiff did not pay these accounts before trial and the chiropractor charged interest on the unpaid accounts.  The Plaintiff asked the court to award damages to account for this interest.
Mr. Justice Myers refused to make this award finding as follows:

[54]    It appears to me that the plaintiff acted reasonably in seeking chiropractic treatment.  I would allow the expenses until December 31, 2009, when he was largely recovered.

[55]    With respect to interest, while counsel have found some authority dealing with interest on disbursements, counsel advise they have not found any case dealing with interest on special damages.  I therefore approach the matter on first principles.

[56]    If the plaintiff had paid the chiropractor, he would have been limited to interest as provided by the Court Order Interest Act, R.S.B.C. 1996, c. 79.  Assuming that interest on special costs may in some instances be recoverable as damages – something which I need not decide – it follows from my finding that the plaintiff has not proved a past wage loss that he cannot hold the defendants responsible for his inability or failure to pay the bills as they became due and owing.  He therefore is not entitled to claim interest as damages.

The BC Supreme Court has recently allowed interest on disbursements levied by service providers to be recovered in a personal injury case.  In that decision the Plaintiff’s ability to pay for the disbursement was also a relevant factor.  Today’s case leaves the door open for a similar result in appropriate circumstances for unpaid special damages.

BC Injury Law Podcast: Non-Pecuniary Damages


This is the first in what I intend to be a series of podcasts discussing topics of interest involving ICBC and other BC personal injury claims.
Today’s topic is valuing a person’s non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) as a result of injuries caused by the fault of another.  To listen simply click on the following link:  bc-injury-law-podcast-non-pecuniary-damages
The case discussed in this Podcast is Stapley v. Hejslet, 2006 BCCA 34 and can be found by clicking here.

BC Court of Appeal: No Litigation Privilege During Investigative Stage


As I’ve previously written, litigation privilege is a principle which allows parties in a law suit to keep evidence from the other side.  In order to successfully take advantage of litigation privilege the document not only has to have been created in the reasonable contemplation of a lawsuit but also for the ‘dominant purpose‘ of use in such a lawsuit.
If a document was made for multiple reasons (ie – investigating a potential claim and defending against a potential claim) the law will likely require disclosure.  Today the BC Court of Appeal released useful reasons summarizing this area of law.
In today’s case (Mathew v. Delta School District #37) the Plaintiff ‘slipped and fell on some ice at a school’.  Shortly after the incident the school’s principal, a teaching assistant and a custodian made notes documenting what occurred.  The Plaintiff started a lawsuit and asked for these.  The Defendant refused to produce these claiming they were privileged.  The dispute made it all the way to the BC Court of Appeal who found that the documents were not privileged as they were made during the ‘investigatory stage‘.  The BC High Court provided the following very useful reasons:

[11] The investigatory stage to which the master referred is well recognized in the authorities. In Hamalainen at para. 24, the following was quoted from a speech in Waugh v. British Railways Board, [1980] A.C. 521 at 541, attributing it to what Lord Denning had said in that case:

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.

[12]         The investigatory stage was discussed in Hamalainen as follows:

[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.

[13]         It was, on the evidence, open to the master to regard the notes as being made in the investigatory stage as opposed to the later litigation stage. They were made directly following Mr. Mathew’s accident. I recognize it may be argued that, in the circumstances, there was little in the way of an investigatory stage here. But that is a matter to be determined on the peculiar facts of each case and I am unable to accept that the evidence foreclosed the significance the master appears to have attached to the notes being made as quickly as they were in relation to the incident.

Cyclist Injured In Collision With Cement Truck Loses at BC Court of Appeal


Earlier this month the BC High Court dismissed an appeal by a cyclist who sustained serious injuries when he collided with a cement truck in 2004 (Sivasubramanian v. Franz).
The cyclist was travelling on the right hand shoulder of a roadway.  As he approached an intersection there was a cement truck ahead of him signalling to turn right.  The truck then started its turn and the cyclist collided into the midsection of the truck.  The Plaintiff sued the cement truck driver.  The case was dismissed at trial (you can click here to read my summary of the trial Judge’s findings).
The Plaintiff appealed arguing that the trial judge was wrong to dismiss the claim because the motorist should have seen the cyclist before the collision and should not have turned when he did.  The BC Court of Appeal disagreed and dismissed the case.  In dong so the Court made the following comments:

[24]         In the case at bar, the respondent truck driver was in the midst of a lawful turn to the right from the curb lane when the appellant rode his bicycle heedlessly into the mid-section of the truck. I agree with the trial judge’s conclusion that it would be unreasonable for Mr. Franz to assume that the appellant, or indeed any other user of the highway, would ignore his indication to turn right, and that by the time the appellant reached the intersection, Mr. Franz was well into his turn and could not have avoided the collision.

[25]         The appellant’s submission that he was so close to the intersection as to constitute an immediate hazard to which Mr. Franz had sufficient time to react and take evasive action is not supported by the trial judge’s findings of fact.

[26]         Second, the appellant’s argument that the trial judge erred in finding that even if Mr. Franz had seen the appellant he would have been justified in making the right hand turn is supportable. Given the trial judge’s findings I see no error in her conclusion.

[27]         I would not accede to the appellant’s arguments. Notwithstanding Mr. Thomas’ able submissions, cases such as this are fact-driven. As in Trac v. Sangra (1995), 17 B.C.L.R. (3d) 92, “this is a case that could be won, if at all, only at trial. For us to interfere would require us in effect to retry this case and to take a different view of the facts from that of the trial judge. That we are most reluctant to do.”

[28]         In my opinion, the appeal should be dismissed with costs to the respondents.

This case demonstrates one of the most basic principles in personal injury lawsuits (tort claims); in order to successfully sue for personal injuries the other party must be at least partially at fault otherwise the result will be dismissal at trial.

Court Finds Health Care Costs Recovery Act Does Not Apply to Actions Commenced before April 1, 2009

(Please Note:  I’ve been advised by a colleague that the case discussed in this post is under appeal and I will update this post once the BCCA’s decision is released)

As readers of this blog know, on April 1, 2009 the BC Health Care Costs Recovery Act came into force which required Plaintiffs to, in certain circumstances, advance claims on behalf of the government to recover MSP health care costs in their personal injury claims.
Today Mr. Justice Sewell released two sets of judgements addressing whether the Act applies to cases filed in Court before April 1, 2009.
In today’s cases (Fong v. Deglan and Gosselin v. Shepherd) the respective Plaintiff’s were injured in non ICBC insured cases.  Their injuries occurred before April 1, 2009 and their lawsuits were also filed before this date.  Prior to the trial the Plaintiffs applied to amend their pleadings to advance the BC Governments claim under the HCCRA.
Lawyers for the Attorney General of BC intervened and argued that these amendments should be allowed.  The Defendants opposed these applications arguing that the HCCRA does not apply to lawsuits filed before April 1, 2009.  Mr. Justice Sewell agreed with the Defendants and dismissed the applications and in so doing made the following findings:

[37]        My review of the Act leads me to conclude that it is not clearly and unambiguously intended to apply to actions commenced before the Act came into force.  The presumption against retrospectivity set out in the cases referred to above together with the internal indications in the Act itself lead me to conclude that s. 2 of the Act has no application to actions commenced prior to the Act coming into force.

[38]        I therefore conclude that the amendment sought discloses no reasonable cause of action and dismiss the application for the amendment on that ground.

[39]        I would also dismiss the application to amend on the grounds that it is not just and convenient to permit such a claim to be advanced.  It is clear that Ms. Gosselin will obtain no benefit from advancing the claim and has no legal obligation to do so.  In these circumstances I consider the amendment to be useless and unfair to the defendants.

[40]        In Langret Investments S.A. v. McDonnell (1996), 21 B.C.L.R. (3d) 145 (C.A.) the court held at p. 153:

• Rule 24(1) of the Rules of Court in British Columbia allows a party to amend an originating process or pleading. Amendments are allowed unless prejudice can be demonstrated by the opposite party or the amendment will be useless. The rationale for allowing amendments is to enable the real issues to be determined. The practice followed in civil matters when amendments are sought fulfils the fundamental objective of the civil rules which is to ensure the just, speedy and inexpensive determination of every proceeding on the merits. See McLachlin and Taylor, British Columbia Practice (2nd Ed.) pp. 24-1 to 24-2-10, and the (7 decision of this Court in Chavez v. Sundance Cruises Corp. (1993), 15 C.P.C. (3d) 305, 309-10.

[41]        In my view the proposed amendments to the statement of claim are useless in that they provide no personal benefit to the plaintiff since any amount recovered by the plaintiff as a result of the amendments would be held in trust and ultimately paid to the government.

[42]        Ms. Gosselin feels that she has a moral obligation to pursue a claim to recover the health care services costs.  However I do not consider it to be appropriate for the Court to impose moral obligations on defendants.  The legislature has set out the circumstances in which the government is entitled to recover the cost of health care services.  I do not consider it to be just to the defendants to put them uniquely in the position of being exposed to a claim that others in the same situation will not be required to answer.

[43]        The application to amend is therefore dismissed.

Clarity is always welcome when a new law comes into force.  I will continue to post about further cases interpreting and shaping this legislation.  You can click here to read my archived posts discussing the HCCRA.

Jury Delivers "Shockingly Unreasonable" Award in BC Injury Claim


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, in what the trial judge described as a ‘shockingly unreasonable‘ verdict by a Jury.
In today’s case (Evans v. Metcalfe) the Plaintiff was injured in a BC motor vehicle collision.  Fault was admitted by the other motorist.  The case went to trial before a Jury with Mr. Justice Romilly presiding as the trial judge.
The Plaintiff led evidence that, as a result of her accident related injuries, she was disabled from working and sought damages accordingly.  The Plaintiff’s out of pocket expenses for alleged accident related treatments exceeded $25,000.
The Jury largely rejected the Plaintiff’s claim and assessed total damages at $17,300 which included $1,000 for pain and suffering, $6,000 for special damages and $10,300 for past loss of income.  The Jury then reduced this award by 15% for ‘failure to mitigate‘ for a total award of $14,705.
The Defendant asked the Judge to enter Judgement based on the Jury’s award.  The Plaintiff argued that the Jury’s award was “unreasonable” and that the verdict should be set aside with a new trial ordered.
Mr. Justice Romilly agreed that the Jury was wrong in reducing the damages by 15% for failure to mitigate but concluded that other than increasing the judgement to the original $17,300 any changes to the Verdict should be left to the Court of Appeal.
Jury’s in BC do not give any reasons for their award and they cannot be contacted after they are discharged to gain insight into their deliberations.  Accordingly it difficult for the Court of Appeal to know how a Jury reaches a particular verdict and feedback from the trial judge is welcome.  Anticipating that this matter would be appealed Mr. Justice Romilly voiced disagreement with the Jury’s findings and provided the following criticism:

[51]        Although it has not been specifically requested of me, I feel it necessary to comment on the reasonableness of the jury’s verdict.  In doing so I am taking in mind both the utility of such comments expressed by Southin J.A. in Johnson, and the limits to them as stated by Garson J.A. in Boota.

[52]        In my opinion, as a long-time member of the bench, the jury’s award in this case has surpassed the level of “shockingly unreasonable”.  The amount of damages awarded for non-pecuniary damages represents a fraction of what was sought.  Whatever the reason, the jury felt the need to punish Ms. Evans in a way that does not accord with the law.  In my judgment I have already discussed some failures of the jury to appropriately apply the law to the actual evidence; I believe that these failures (and more) are further manifest in their wholly disproportionate award.  No jury reviewing the evidence as a whole and acting judicially could have reached the verdict issued in these proceedings; the evidence cannot support the verdict.

Getting Your Time Estimate Right For Trial


Ask any Judge or Lawyer whose spent time in the BC Court System and they’ll tell you that it is important not to underestimate the amount of time you’ll need to have your matter heard in Court.  If you do you will run the risk of having your case struck off the list and reset for a later date.  Sometimes the matter can be put off well into the future, be it a trial or a chambers application.  Reasons for judgement were published this week on the BC Supreme Court website demonstrating this.
In this week’s case (Smith v. Bregt) the Plaintiff was injured in a motor vehicle collision.  She elected to prosecute her case under the BC Supreme Court Fast Track Rule.  One of the current requirements of the current fast track rule (rule 66) is that the trial must be completed within two days.  As the trial got underway it became clear that it could not be completed in two days.  The Defence lawyer brought a motion seeking to have the case removed from the Fast Track.  Madam Justice Dorgan granted the motion, declared a mistrial and ordered that the trial be reset for a later time.  In reaching this conclusion the Court gave the following reasons:

[10] By the endorsement of her pleadings, the plaintiff opted for the Rule 66 trial process.  That signals that the case is suitable to be tried within 2 days.  It is then incumbent upon the plaintiff to tailor its case to fit into the 2day estimate.  The defendant has relied on the endorsement.  So has the administration in that the endorsement impacts the timing of other trials.

[11] If I order that the rule no longer applies, I assume the plaintiff will not get a trial date for some time.  Neither counsel has given me any information from the trial co-ordinator’s office as to what dates are available.  The plaintiff is geared up.  She has given her evidence-in-chief.  Trial preparation is completed.  She clearly wants this matter resolved.  She wants to proceed, to continue, and I can appreciate that.

[12] On the other hand, the defendants submit the plaintiff has taken her own case out of the provisions of Rule 66 by the first witness called, and the defendants argue that the court must enforce the rule with an eye to its purpose.  And, as Mr. Penner pointed out, by a plaintiff’s Rule 66 endorsement a defendant loses his/her right to a trial with a jury.

[13] Because the whole trial agenda timetable is completely out of whack, people will be inconvenienced whether or not the trial proceeds under Rule 66.

[14] Having considered this carefully, I am of the view that the purpose of the rule will be thwarted entirely if the application of the defendants is dismissed.  The interests of justice and fairness to the parties require that a plaintiff, who elects to proceed pursuant to Rule 66, must put its case in within 2 days, barring consent of the parties or reasonably unforeseeable circumstances arising since the trial agenda was filed and leave of the court.

[15] The defendants do not consent to the trial now continuing to completion, which I conclude will require at least 2 more days.  No reasonably unforeseen circumstances have emerged. The endorsement by the plaintiff is the plaintiff’s chance to proceed under Rule 66.  The manner in which the plaintiff has proceeded or the way the case has unfolded leads me to conclude that the case is inappropriate for Rule 66.

[16] In conclusion, pursuant to Rule 66(8), I order that Rule 66 ceases to apply to this action.  I declare a mistrial and order that the trial be placed on the trial list and that I am not seized.

As my readers know, Rule 66 is being abolished as of July 1, 2010, and is being replaced with a new Fast Track Rule known as Rule 15. Rule 15 appears to be mandatory for all personal injury claims with a trial time estimate of 3 days or less.  Like Rule 66 it limits time for discovery to 2 hours and takes away the parties right to a Jury Trial.

The rule relied on in the above case permitting a Court to remove a trial from the Fast Track remains in place under the New Rules and is reproduced at Rule 15-1(8).  Accordingly this case will likely continue to remain a useful precedent under the New Rules and lawyers and litigants themselves should be cautioned to err on the side of overestimating the length of their trials to avoid a result like this one.

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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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