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

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.

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

Written by admin on . Posted in BCSC Civil Rule 11, BCSC Civil Rule 7, independent medical exams, Uncategorized. 122 Comments on 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

Written by admin on . Posted in ICBC Chronic Pain Cases, Uncategorized.


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?

Written by admin on . Posted in Uncategorized. 2 Comments on 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.

More on ICBC Claims and Hit and Run Lawsuits: The "Reasonable Efforts" Requirement

Written by admin on . Posted in Uncategorized. 58 Comments on More on ICBC Claims and Hit and Run Lawsuits: The "Reasonable Efforts" Requirement


Further to my previous articles on this topic, when suing ICBC for compensation for injuries sustained in a hit and run accident (Unidentified motorist claims) one of the requirements under Section 24 of the Insurance (Vehicle) Act is for the claimant to make “all reasonable efforts to ascertain the identity of the unknown driver“.  If a claimant fails to do so their claim for compensation against ICBC will fail.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating such a result.
In this week’s case (Gonclaves v. Doe) the Plaintiff was involved in a motor vehicle collision on Highway 1 in British Columbia in 2006.  The Plaintiff was driving a bus at the time of the crash.  His vehicle was struck by another vehicle.  After the collision the Plaintiff failed to obtain identifying information from the other motorist.  In the days and weeks following the crash the Plaintiff did not report the incident to the police or ICBC, instead he assumed his employer would take care of this.  The Plaintiff then sued ICBC under section 24 of the Insurance (Vehicle) Act seeking compensation for his personal injuries.  ICBC opposed the lawsuit and asked that the case be dismissed.
Mr. Justice Harris agreed with ICBC that the Plaintiff failed to take reasonble efforts to identify the unknown motorist.  As a result the lawsuit was dismissed.  In doing so Mr. Justice Harris provided the following useful summary of the requirement for claimants to make “all reasonable efforts“:

[4]             Under s. 24 of the Insurance (Vehicle) Act, R.S.B.C. 1996, c. 231, the Insurance Corporation of British Columbia (“ICBC”) may be the nominal defendant and liable for damages to the plaintiff for damages from a motor vehicle accident where the identities of the owner and driver of the other vehicle involved are not ascertained.

[5]             ICBC will only be liable as nominal defendant if the plaintiff has made “all reasonable efforts to ascertain the identity of the unknown owner and driver or unknown driver, as the case may be”: Insurance (Vehicle) Act, s. 24(5).

[6]             The appropriate test to determine whether all reasonable efforts have been made is: Did the plaintiff do all that he would have to identify the other parties involved if he intended to pursue legal action against them, if ICBC were not potentially liable under s. 24 of the Insurance (Vehicle) Act?: Leggett v. Insurance Corporation of British Columbia (1992), 72 B.C.L.R. (2d) 201 (C.A.) at para. 13.

[7]             The requirement to make all reasonable efforts is not limited to the immediate aftermath of the collision. To satisfy this test, the plaintiff must have made all reasonable efforts at the scene of the collision to identify the other parties. The plaintiff must also have made all reasonable efforts to identify the other parties in the days and, possibly weeks, that followed the collision: Slezak v. ICBC, 2003 BCSC 1679, at para. 42.

[8]             “All reasonable efforts” does not mean “all possible efforts”. “Reasonable” means “logical, sensible and fair,” and does not mean “absurd, whimsical or unwarranted”: Slezak at para. 40.

[9]             Similarly, “not ascertainable” does not mean “could not possibly be ascertained,” but instead means “could not reasonably be ascertained”: Leggett  at para. 11.

[10]         The plaintiff is not required to take an action to identify the other parties that, while possible, is “highly unlikely” to produce any result: Liao v. Doe, 2005 BCSC 431, at para. 14.

[11]         “All reasonable efforts” includes a subjective aspect. In deciding whether all reasonable efforts were made, consideration must be given to the plaintiff’s physical and mental state at the time of the collision, and the circumstances surrounding the collision: Holloway v. I.C.B.C. and Richmond Cabs and John Doe, 2007 BCCA 175, at para. 13.

Renewing a Lawsuit and the New BC Supreme Court Civil Rules

Written by admin on . Posted in BCSC Civil Rule 3, Civil Procedure, Uncategorized. 66 Comments on Renewing a Lawsuit and the New BC Supreme Court Civil Rules


Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, applying Rule 3-2(1) of the New BC Supreme Court Civil Rules.  This rule permits the Court to renew a Notice of Civil Claim before or after it expires.  Today’s case is the first I’m aware of applying this new rule.
In today’s case (Stuart v. Patterson) the Plaintiff was injured in two consecutive instances while engaging in exercises known as “dead-lifts”.  These exercises were apparently being supervised by the Defendant.  The Plaintiff started two separate lawsuits against the Defendant alleging that he was at fault for her injuries.  The Plaintiff’s lawyer failed to serve the Writ of Summons within the first year after filing.  The Plaintiff brought an application to renew the lawsuit relying on Rule 3-2(1) of the New Rules of Court.
Madam Justice Fitzpatrick found that the Plaintiff’s lawyer acted reasonably in taking steps to renew  the lawsuit after learning it expired and that there was little prejudice to the Defendant and accordingly renewed the filed documents for a further two months permitting them to be properly served on the Defendants.  In doing so the Court seemed to accept that Rule 3-2(1) reads almost identically to the old Rule 9(1) and that the precedents developed under the old rule remain in force.   Madam Justice Fitzpatrick summarized the applicable law as follows:

[10]         The leading case on the test to be applied on this application is Bearhead v. Moorhouse, [1977] B.C.J. No. 1324, (1977), 3 B.C.L.R. 81 (S.C.), upheld on appeal (1978), 5 B.C.L.R. 380. The test adopted by the Court of Appeal at that time requires the court to ask itself the basic question of “what is necessary to see that justice is done?”  In considering that question, the following factors are to be considered:

1.               Was the application to renew brought promptly?

2.               Did the defendants have notice of the claim before the writ expired?

3.               Did the defendant suffer prejudice?

4.               Was the failure to serve the writ attributable to the actions of the defendants?

5.               Was the failure to serve the writ attributable to the actions of the plaintiff?

[11]         Recent considerations of these factors are found in our Court of Appeal decisions of Seeliger v. Eagle Ridge Hospital, 2007 BCCA 582, and Fast Fuel Services Ltd. v. Michelin North America (Canada) Inc., 2008 BCCA 216.

[12]         It is clear from the authorities cited to me by both counsel that each case is to be decided on its particular facts.

[13]         Further, counsel for Ms. Stuart refers me to the statements from the Saskatchewan Court of Appeal in Simpson v. Saskatchewan Government Insurance Office (1967), 61 W.W.R. 741, at p. 750, 65 D.L.R. (2d) 324, to the effect that failure to renew a writ is an “irregularity” and that “if the refusal to renew the writ would do an obvious and substantial injustice to the plaintiff, while to permit it is not going to work any substantial injustice to the defendant or prejudice the defendant’s defence, then the writ should be renewed”: see Bearhead, BCCA at para. 8; Lowe v. Christensen (1984), 54 B.C.L.R. 88 (C.A.) at para. 13; Sutherland v. McLeod, 2004 BCCA 653, at paras. 28-29.

[14]         I accordingly consider the Bearhead factors:

ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"

Written by admin on . Posted in Civil Procedure, Uncategorized. 121 Comments on ICBC Injury Claims, Dueling Experts and the Danger of "Advocacy"


A common theme when ICBC or other personal injury claims go to trial is that of dueling expert witnesses.  Often times the Plaintiff’s treating physicians provide an opinion to the Court that is contradicted by experts hired by defendants or insurance companies.  In deciding how much the claim is worth a Court must navigate through these competing opinions and decide who to believe.
Treating doctors, due in part to their long term relationship with their patients, sometimes provide their opinion in an argumentative way.  While well intentioned such opinions can do more harm than good.  The reason being is that the Rules of Court require expert witnesses to be neutral when presenting their opinion to the Court.  When experts advocate for one side or another they risk having their opinion discounted or even being excluded from evidence altogether.  The potential harm caused by expert advocacy was demonstrated in reasons for judgement released today by the BC Supreme Court, Vernon Registry.
In today’s case (Gendron v. Moffat) the Plaintiff was involved in a motor vehicle collision in 2008.  Fault for the crash was admitted by the opposing motorist focusing the trial on the value of the Plaintiff’s ICBC claim.  The Plaintiff sustained various injuries.  The Court heard different opinions as to the extent of these from the Plaintiff’s treating doctor and from the expert hired by ICBC.
The Plaintiff’s GP provided the opinion that the Plaintiff suffered from chronic injuries as a result of the Crash.  The doctor hired by ICBC disagreed and gave evidence that the accident related injuries largely ran their course and the Plaintiff’s symptoms were better explained by unrelated arthritis.  Ultimately Mr. Justice Cole preferred the evidence of ICBC’s doctor.  In coming to this conclusion the Court found that the Plaintiff’s doctor acted as an advocate and excluded portions of her evidence and discounted other parts.  Mr. Justice Cole provided the following useful comments:

[15] The doctor summarized her condition as follows:

Ms. Gendron sustained grade 2 strains to her cervical, thoracic and lumbar spines and a grade 2 strain to her right shoulder when she was T-boned in an intersection by a vehicle that had run through a red light. The impact imparted both forward and rotational acceleration forces through Ms. Gendron, and the subsequent symptom pattern and chronology of injury were consistent with the mechanism and severity of injury. Ms. Gendron has consistently demonstrated a high level of motivation to recover from her injuries, and has remained at work since her MVA , albeit in a reduced capacity. [Emphasis added.]

[16] The last two sentences of that summary I had removed, as in my view, the first sentence dealing with the impact of the accident and acceleration forces were not within the expertise of the doctor and the comment about her high level of motivation demonstrated that the doctor was acting more as an advocate than as an independent professional.

[17] The doctor was also critical of Dr. T. O’Farell, an orthopaedic surgeon who filed a report and gave evidence at trial. He was of the view that Dr. O’Farell’s report was “below the currently accepted standard for a specialist’s medical legal report.”  Again, that sentence was removed on the basis that the family doctor was more of an advocate than an independent professional and lacked the expertise to make such a statement…

[22] I am of the view that the plaintiff’s family physician, while a highly qualified doctor, is more of an advocate than an independent medical specialist and that it is almost impossible to be objective and an advocate at the same time. I therefore prefer the evidence of Dr. O’Farell that her neck pain is due to arthritis in her spine…

[27] In conclusion, I find that the injuries sustained by the plaintiff in the motor vehicle accident for which the defendant is liable, have substantially resolved.

While the doctor’s advocacy was not the sole reason for the Plaintiff’s lack of success at trial (The Court also found that the Plaintiff was not a credible witness) it goes to show that an overzealous treating physician can do more harm than good when providing an opinion to the Court.  It is important for treating doctors to give their evidence in a fair and balanced manner to maximize the chance of having their opinions accepted at trial.

Rear-Ended Motorist Found 75% at Fault for Stopping for "No Apparent Reason"

Written by admin on . Posted in ICBC Liability (fault) Cases, Uncategorized. 107 Comments on Rear-Ended Motorist Found 75107 at Fault for Stopping for "No Apparent Reason"


As I’ve previously written, If a vehicle is involved in a rear-end collision the rear motorist is usually found 100% at fault.  There are exceptions to this general rule, however, and one such exception was demonstrated in reasons for judgement released today by the BC Supreme Court, New Westminster Registry.
In today’s case (Yacub v. Chipman) the Plaintiff was involved in a 2007 collision in Surrey, BC.  Her vehicle was rear-ended by a truck driven by the Defendant.  She sued for damages and the Court was asked to decide who was at fault.
The Court heard different versions of how the collision occurred but ultimately found that as the Plaintiff entered an intersection she stopped for “no apparent reason” and was then rear-ended by the Defendant.  Mr. Justice Truscott found the Plaintiff was 75% to blame for this crash.  In coming to this finding the Court provided the following reasons:

[44]         I accept the evidence of these same two witnesses as well that the plaintiff told Mr. Chipman she had stopped in the middle of the intersection out of concern that a vehicle about to left turn was going to do so in front of her.

[45]         Unfortunately the plaintiff herself does not give this as a reason for her stopping in the middle of the intersection and there is no evidence of any vehicle proposing to turn left making any movement to do so that would support any concern that she might have had in that regard.

[46]         In the absence of any such evidence she is not able to meet the requirement of s. 189(1) of the Motor Vehicle Act that she did so to avoid conflict with traffic and I must conclude that she violated s. 189(1)(c) in stopping in the middle of the intersection for no apparent reason.

[47]         This breach also puts her in violation of s. 144(1)(a) and (b) in driving without due care and attention and without reasonable consideration for Mr. Chipman using the highway behind her.

[48]         I accept the evidence of Ms. Hallett that Mr. Chipman was only about one car length behind the plaintiff’s vehicle as the plaintiff’s vehicle entered the intersection…

[51]         Accordingly I conclude that as Mr. Chipman entered the intersection he was following more closely than was reasonable and prudent having regard to the speed of the two vehicles contrary to s. 162(1) of the Motor Vehicle Act.

[52]         This also put him in breach of s. 144(1)(a) and (b) for the same reasons.

[53]         In my view the fair conclusion from these findings is that liability should be apportioned against the plaintiff 75% and against the defendant 25% and an order will go to that effect. The plaintiff’s liability is greater because Mr. Chipman would have no reason to think she would stop in the middle of the intersection while the plaintiff had to know that this would be unexpected to following traffic.

Mild Soft Tissue Injury Valued at $4,000; BC Supreme Court Rule 14 Discussed

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 14, ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing the value of non-pecuniary damages (money for pain and suffering and loss of enjoyment of life) for a mild soft tissue injury.
In this week’s case (Brar v. Kaur) the Plaintiff was involved in a 2006 rear end collision.  Prior to trial the responsible motorist admitted fault for the crash.  The matter proceeded to court under the “summary trial” rule where the evidence was presented by affidavits.   The evidence established that the Plaintiff suffered a fairly minor soft tissue injury in the crash.  Mr. Justice Truscott awarded the Plaintiff $4,000 for his non-pecuniary damages and in doing so made the following comments about the severity of the injury and the difficulty in valuing a case without hearing live testimony from the Plaintiff:
[42] It is near to impossible to assess credibility on a summary judgment application supported only by affidavits. The plaintiff’s injuries were only soft tissue injuries caused by a very minor accident and those complaints were subjectively based and not objectively verifiable. Accordingly the Court must be cautious in accepting his complaints as proven.

[43]         However Dr. Sandhu does not suggest in his report the plaintiff is not to be believed on his complaints or even suggest that he is exaggerating. He appears to have accepted the plaintiff’s complaints as legitimate and consistent with the mechanism of the accident and I likewise am prepared to accept the complaints of the plaintiff as stated in his affidavit and as reported to Dr. Sandhu.

[44]         I am prepared to conclude that the plaintiff sustained mild soft tissue injuries to his neck and back areas. While Dr. Sandhu says the plaintiff was fully recovered in six months I observe that Dr. Sandhu’s last report of complaints from the plaintiff was on May 17, 2007, only five months after the accident. Thereafter it does not appear the plaintiff saw Dr. Sandhu again until over one year later and then it was for unrelated issues…

[54] I award the plaintiff $4,000 for non-pecuniary damages as his injuries lasted slightly longer than the injuries of the plaintiffs in Saluja and Bagasbas.

This case is also the first that I am aware of to apply the New BC Supreme Court Rule 14-1(10).  This rule prevents a Plaintiff who is awarded below $25,000 from being awarded costs unless they have “sufficient reason” to sue in the Supreme Court.  Mr. Justice Truscott held that the Plaintiff did not have sufficient reason to sue in the Supreme Court because “he could never have reasonably expected to obtain an amount in excess of the Small Claims jurisdiction“.

Mr. Justice Truscott applied this rule consistently with precedents developed under the old Rule 57(10) which reads identically to the new rule.  I should also point out that the BC Court of Appeal is expected to address the issue of whether Plaintiff’s in ICBC claims worth below $25,000 have sufficient reason to sue in the Supreme Court due to the “institutional” nature of ICBC and this upcoming judgement should add welcome clarity to this area of the law.

"Proportionality" Given First Judicial Interpretation, Severance of Liability and Quantum Considered

Written by admin on . Posted in BCSC Civil Rule 1, BCSC Civil Rule 12, Civil Procedure, Uncategorized.


Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, interpreting two topics under the New BC Supreme Court Civil Rules, the test of “proportionality” and the circumstances permitting a Court to sever liability (the issue of fault) from quantum (the value of a personal injury claim).
In today’s case (Cayou v. Cayou) the Plaintiff was injured in an intersection collision in 2006.  The Plaintiff was the front seat passenger in a vehicle being driven by her daughter.  The Plaintiff sued the drivers of both vehicles.  ICBC alleged that the Plaintiff was in breach of her policy of insurance and intervened as a statutory Third Party.  The Plaintiff’s claim was set for trial in November to be heard by Judge and Jury.  The Plaintiff applied for an order seperating quantum from liability seeking to have the issue of fault determined by Judge alone.
Mr. Justice Wilson dismissed the application and in doing so found that the New Rules of Court dealing with severance of issues are identical to the old rules therefore old precedents should retain their value as guiding authorities.  Specifically Mr. Justice Wilson held as follows:

[22]         The plaintiff’s application is said to be made pursuant to Rule 1-3 and 12-1(9), of the Rules of Court.

[23]         Rule 1-3 directs the court on the object of the rules, including the notion of “proportionality”.

[24]         Rule 12-1(9) confers upon the court a power to adjourn a trial.

[25]         Although not stated, the plaintiff also, presumably, finds authority for her application in Rule 12-5(67) and (68).

[26]         Rule 12-5(67) confers a power on the court in these words:

(67)      The court may order that one or more questions of fact or law arising in an action be tried and determined before the others.

[27]         Rule 12-5(68) confers a power on the court in these words:

(68)      The court may order that different questions of fact arising in an action be tried by different modes of trial.

[28]         There is a change in the wording between Rule 12-5(67) and the former rule, Rule 39(29).

[29]         I conclude that the power to sever issues is the same in substance between the former rule and the current rule.

[30]         The governing principles established for the exercise of the power conferred under the previous rules have been established. Since I find that the power conferred under the new rule is the same as the old rule, I conclude that the principles defined under the former rule must be considered.

The Court went on to note that while the law of severance of issues remains the same the Court now must consider the overarching purpose of ‘proportionality’ when applying the Rules of Court.  This is the first case I’m aware of addressing this principle.  Mr. Justice Wilson provided the following comments:

[48]         To the framework of analysis under the pre-existing rule, must be added a consideration of the objective of “proportionality” mandated by Rule 1-3(2):

(2)        Securing the just, speedy and inexpensive determination of a proceeding on its merits includes, so far as is practicable, conducting the proceeding in ways that are proportionate to

(a)        the amount involved in the proceeding,

(b)        the importance of the issues in dispute, and

(c)        the complexity of the proceeding.

[49]         Expense was the sole factor urged by the plaintiff in support of severance. In the event of a review, however, I will set out my findings on the factors prescribed in the rule.

[50]         First, I take the “amount involved” to mean the quantum of monetary damages awarded to the plaintiff as the result of a successful prosecution of her lawsuit.

[51]         This factor was not argued. But, seemingly, the method of trial currently extant is proportionate to, that is to say, “duly related” to, the amount involved. I find this factor to be neutral.

[52]         Second, the issue of credibility is important to the issue of fault, and, I am told, to the issue of quantum.

[53]         For the reasons given above, for deciding against severance on the ground of interconnected issues, I find that one trial of all issues is proportionate to the expense to be incurred, to conduct one trial.

[54]         Severance, for the economic reasons advanced in this case, by denying the trier of fact all of the evidence on the issue of credibility, would be disproportionate to the twin objectives of a just and speedy determination of the action, on its merits.

[55]         Third, I would not characterize this action as one of complexity.

[56]         Mr. Shumka is probably right. This action arises out of a routine intersection collision, involving a vehicle turning left in the path of an oncoming vehicle, with its attendant personal injuries. In the event, there is nothing on the record to suggest that complexity was a factor contributing to the notion of proportionality.

[57]         No other factors (other than economical) were identified.

[58]         In result, the plaintiff’s application is dismissed. Costs of the application will be in the cause, pursuant to Rule 14-1(12).