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Jury Struck in Injury Claim With "Complex" Business Loss Element

Written by admin on . Posted in BCSC Civil Rule 12.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, striking a jury notice for a personal injury claim with a complex business loss component.
In today’s case (Forstved v. Kokabi) the Plaintiff was involved in a collision and sued for damages.  The Defendant elected to proceed to trial with a jury.  THe Plaintiff argued that the claim, particularly with its business loss component, was too complex for a jury.  The court agreed and struck the Defendant’s jury notice.  In doing so Master Dick provided the following reasons:

[50]         In this case, I agree with the plaintiff. The evidence in this case is sufficient to establish that this case will require a prolonged examination of documents or accounts and that the issues require a scientific or local investigation.

[51]         I must now look to whether the examination or investigation may conveniently be made with a jury. In considering this question, I acknowledge that a party’s right to trial by jury is entitled to great weight and ought not to be disturbed except in the clearest of cases.

[52]         In this case, I must consider if the jury can not only understand the evidence as it is presented and rebutted, but also retain it over 19 days and engage in a reasoned analysis at the end of the trial.

[53]         The plaintiff will be calling at least 23 witnesses, of whom 11 are experts. There will be lay witnesses, including the plaintiff’s accountant Mr. Moody. The accountant will be introducing many of the business and tax documents to support the plaintiff’s business arrangements. There will be at least 22 expert reports to be considered.

[54]         If I was just considering the number of experts, the expert’s use of terminology, the volume of medical evidence, and divergent opinions alone, that would not necessarily cause me to strike the jury in this case. What makes this case more difficult is the fact the plaintiff’s income and business losses are not straightforward. The jury will have to review and understand the plaintiff and his spouse’s income tax information as well as the financial statements from all of the corporations he owned. The jury will then have to analyze, understand, and interpret the documents to assess his income and business loss.

[55]         In this case, I accept that the issues of causation and quantification of damages will require prolonged examination of documents and scientific matters going to many issues over a protracted period. The difficulties for the trier of fact in dealing with this task was set out in Wallman v. Insurance Corporation of British Columbia, 2012 BCSC 1849 at para. 57:

. . . It may be necessary to retain fine detail from the examination in chief and cross-examination of many witnesses on multiple issues for weeks before those issues are traversed by defence witnesses. Considered on their own, most, but not all, of the expert reports in this case may be understood by a jury in light of the full examination in chief and cross-examination of the experts, but retention of that understanding over several weeks is likely to be so difficult, in my view, that fruitful analysis at the end of the day may be impossible.

[56]         I have considered all of the submissions made by counsel and the factors set out in paragraph 25 of these reasons. In this matter there is a significant dispute about the injuries sustained by the plaintiff and the impact on his life. After consideration of all of the above, I find that the jury will be significantly challenged over the 19 days of trial to retain, understand, and analyze the complex and conflicting evidence and reach factual and legal conclusions on the issues of causation and damages. As a result, I am satisfied that this matter cannot conveniently be heard by a jury.

[57]         I therefore will exercise my discretion to strike the jury notice and there will be an order that the trial of this case will be heard by judge alone.

$55,000 Non-Pecuniary Assessment for Chronic But Not Disabling Neck and Shoulder Injury

Written by admin on . Posted in ICBC Soft Tissue Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic soft tissue injuries sustained in a collision.
In today’s case (Young v. Shao) the Plaintiff was involved in a 2013 rear-end collision.  The Defendant admitted fault.  The crash resulted in chronic but non-disabling soft tissue injuries with a poor prognosis for full recovery.  In assessing non-pecuniary damages at $55,000 Madam Justice Adair provided the following reasons:

[81]        Based on my findings above, Ms. Young will continue to have chronic pain symptoms, particularly in her neck and shoulder. As a result of the injuries she sustained, her ability to participate in her most favourite past-time – dancing – was curtailed altogether for several months. When Ms. Young’s injuries had sufficiently healed to allow her to resume dancing, she could not engage in the activity to the same extent as before the accident. Dancing has always been a very important part of Ms. Young’s lifestyle. The effects of her injuries have also made Ms. Young’s ability to work – something else that is important to her and gives meaning to her life – more difficult. Although she has never missed work, she has had to work with pain, and will have to do so indefinitely.

[82]        On the other hand, I had no evidence that, as a result of the injuries, there was any impairment in Ms. Young’s family or social relationships. Indeed, only Ms. Young testified about how her life was affected. I did not hear from any friends, family members or co-workers. This was a significant feature of at least two of the cases cited by Mr. Vondette, which is not present here.

[83]        In view of my findings above, and taking into account the factors mentioned in Stapley (including Ms. Young’s age and stage of life) and the cases cited to me in argument, I conclude that a fair and reasonable award of non-pecuniary damages is $55,000.

$100,000 Non-Pecuniary Assessment For Disc Herniation With Poor Prognosis

Written by admin on . Posted in Uncategorized.

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic and likely permanent back pain arising from a vehicle collision.
In today’s case (Domijan v. Jeon) the Plaintiff was involved in a 2012 collision the Defendant accepted fault for.  The crash caused an L4-5 intervertebral disc injury with central disc herniation.  The prognosis for recovery was poor and the Plaintiff was expected to have some degree of back pain for the rest of his life.  In assessing non-pecuniary damages at $100,000 Madam Justice MacDonald provided the following reasons:

[109]     I am not convinced that the plaintiff’s issue is simply pain relating to lumbar facet joint syndrome as put forward by Dr. Rickards. In fairness to Dr. Rickards, he stated this diagnosis in guarded terms using the word “possibly” numerous times. I prefer the testimony of Dr. Nikolakis and Dr. Appleby, that the plaintiff has a disc protrusion, specifically an L4-5 intervertebral disc injury with central disc herniation. This is based on the onset of pain being temporally related to the accident and the objective findings in the scans. As Dr. Nikolakis reported:

I was able to view the images from this diagnostic study [the March 3, 2014 MRI scan]… This investigation reveals desiccation of the L4-5 intervertebral disc along with a central disc herniation posteriorly and bulging of the intervertebral disc and anteriorly as well. There is a loss of disc height, which is significantly different relative to the healthy disc above and below this level….

[110]     I accept Dr. Nikolakis’ and Dr. Appleby’s evidence regarding diagnosis and am satisfied on the balance of probabilities that Mr. Domijan’s pain is due to an L4-5 disc protrusion in his lower back, which was caused by the motor vehicle accident. It is more likely than not that the plaintiff will have ongoing, albeit partially resolved, back pain for the remainder of his life…

[128]     Here there was no evidence that the plaintiff suffered from psychiatric issues, such as depression, from the accident. He has demonstrated success post-accident despite the demanding physical labour of his work. He works through the pain, although he often suffers. He is certainly not completely disabled. It is clear that the plaintiff is not a complainer, he keeps his pain largely to himself, and overall presents as a stoic young man.

[129]     It would be improper to penalize Mr. Domijan for his stoicism, a factor that should not, generally speaking, be held against a plaintiff: Stapley at para. 46; Clark v. Kouba, 2014 BCCA 50; and Giang v. Clayton, 2005 BCCA 54 at para. 54.

[130]     I note that the plaintiff was a relatively young man at the time of the accident and now faces his adult life with chronic pain, although his pain has diminished since he changed his career to that of a railway conductor.

[131]     I do not give much weight to the defendant’s submissions that participation in sport typically decreases with age as career and family obligations increase, or that the plaintiff never intended to pursue soccer professionally, in my assessment of non-pecuniary damages. The evidence suggests that Mr. Domijan was an avid soccer player and would have continued to play regularly but for the accident.

[132]     In all the circumstances, I consider an appropriate award of non-pecuniary damages to be $100,000. This amount recognizes the plaintiff’s ongoing pain, loss of enjoyment of life, especially his inability to participate in sports, and the longevity of his claim.

BC Lawsuit For Alberta Car Crash Dismissed for Lack of Jurisdiction

Written by admin on . Posted in Uncategorized.

Reasons for judgment were published today by the BC Supreme Court, Victoria Registry, dismissing a BC lawsuit on grounds that it had no jurisdiction over an Alberta based collision claim.
In today’s case (Brooks v. Leithoff) the Plaintiff was involved in a total of 5 collisions.  Four of the five occured in BC.  The third occured in Alberta.  The Plaintiff sued the Alberta motorist in BC alleging the crashes all gave rise to a single indivisible injury.
The Defendant sought to have the claim dismissed on the basis that there was no connection to BC to the crash.  The Court agreed with the Defendant and dismissed the lawsuit.  In doing so and finding the claim should have been filed in Alberta Madam Justice Power provided the following reasons:

[49]         When I consider the plaintiff’s arguments, I am not persuaded that the facts that the plaintiff points to are sufficient to displace what I view to be the clear weight of case law in British Columbia:  neither the plaintiff’s residency in British Columbia, nor the fact of indivisible injuries, nor the fact that the plaintiff is suffering ongoing damages in British Columbia, are, by themselves, sufficient to establish a clear and substantial connection to British Columbia.  When these three elements are combined, do these elements together then prove sufficient to ground jurisdiction?  I cannot conclude that they do.

[50]         During the course of argument, the plaintiff fairly conceded that some of the plaintiff’s arguments related to forums conveniens, which is not something I should take into account at this stage.  The plaintiff may have to mount two separate trials on substantially the same evidence as a result of this ruling, but again, that is not a factor I should take into when determining whether jurisdiction has been established.

[51]         During arguments, counsel for the plaintiff also suggested that if I did not accept that there was jurisdiction under s. 3(e) of the CJPTA, I could nevertheless exercise my residual discretion under s. 6 of the Act to find that this Court has jurisdiction.

[52]         In my view, this argument must fail because the exercise of discretion under s. 6 requires that either a) there is no court outside British Columbia in which the plaintiff can commence the proceeding, or b) that the commencement of the proceeding in a court outside British Columbia cannot reasonably be required.  The fact that the plaintiff has already commenced an action in Alberta leads me to conclude that it is open to the plaintiff to continue litigation of this matter in that jurisdiction.

[53]         During the arguments before me, counsel for the plaintiff also pointed to concerns relating to fairness, and the practical difficulties that Ms. Brooks would face in bringing two separate but essentially identical claims in two separate jurisdictions.  While I appreciate these practical difficulties, there are times when appeals to fairness in the law must yield to the demands for clarity and order in the law.  The words of Mr. Justice La Forest in Tolofson v. Jensen, [1994] 3 S.C.R. 1022 at 1058, although made in a somewhat different context, are nevertheless applicable here:

While, no doubt … the underlying principles of private international law are order and fairness, order comes first.  Order is a precondition to justice.

[54]         Overall, it is my view that the weight of the case law clearly establishes that the facts here are not sufficient to establish a real and substantial connection to British Columbia.

[55]         In the result, the defendant’s application to strike and dismiss the plaintiff’s claim for want of jurisdiction in British Columbia is granted.

 

$85,000 Non-Pecuniary Assessment for Aggravation of Pre-Existing Somatic Symptom Disorder

Written by admin on . Posted in ICBC Psychological Injury Cases.

Reasons for judgement were published today by the BC Supreme Court, New Westminster Registry, assessing damages for an aggravation of a pre-existing psychiatric condition from a vehicle collision.
In today’s case (Hrnic v. Bero Investments Ltd.) the Plaintiff was involved in a 2013 collison that the Defendants accepted fault for.  The crash caused both physical injury and an aggravation of a pre-existing somatic symptom disorder.  In assessing non-pecuniary damages at $85,000 Mr. Justice Saunders provided the following reasons:

[35]        I find the plaintiff suffered physical injuries in the accident. I am not persuaded that the purely physical injuries were significantly disabling in respect of the plaintiff’s activities of daily living, or her employment, for more than approximately 18 months following the accident. There is no reason to believe that there is a physical, i.e. orthopaedic or neurological, cause of Ms. Hrnic’s current symptoms.

[36]        However, I find that the plaintiff also suffered at the time of the accident from a pre-existing, but not disabling, psychiatric condition – somatic symptom disorder – that was aggravated by the accident, and which, superimposed on the actual physical injuries she did temporarily suffer, has become functionally disabling.

[37]        I do not find any real or substantial possibility that the pre-existing somatic symptom disorder would have become disabling, but for the subject accident. In that respect, the defendants “take the victim as they find her”, and there is no discounting of the defendants’ degree of liability on account of the plaintiff’s original position as regards the claims for loss of past and future earning capacity.

[38]        Given the longstanding nature of the plaintiff’s disorder, and given her resistance to recommended medical treatment, I find it likely that her disability will not substantially improve up to her previously planned retirement age of 65, and beyond. There is some possibility that Ms. Hrnic may undergo some spontaneous improvement, and some possibility that she may elect some form of medical treatment that will benefit her. But these are very modest possibilities, and are properly accounted for as contingencies through very modest reductions in damages…

[52]        I award the plaintiff non-pecuniary damages of $85,000.

BC Court of Appeal – "Segregated" Non-Pecuniary Awards Should be Avoided

Written by admin on . Posted in Uncategorized.

Several years ago it was more common to see BC courts awarding damages for ‘diminished housekeeping capacity‘ as a stand alone head of damage in injury litigation.  More recently the common practice is for courts to roll these in to the general damages awarded for non-pecuniary loss without a stand alone analysis.  Last week the BC Court of Appeal published reasons indicating the latter is the preferred practice.
In the recent case (Riley v. Ritsco) the Plaintiff was injured in a vehicle collision and sued for damages.  At trial non-pecuniary damages of $65,000 were assessed.  The Plaintiff successfully appealed and in doing so the BC Court of Appeal increased this head of damage to $85,000.  The Plaintiff also argued that the judge erred in not assessing damages for loss of housekeeping capacity as a stand alone head of damage.  In finding no error occured here the BC Court of Appeal provided the following guidance:

[101]     It is now well-established that where a plaintiff’s injuries lead to a requirement that they pay for housekeeping services, or where the services are routinely performed for them gratuitously by family members or friends, a pecuniary award is appropriate. Where the situation does not meet the requirements for a pecuniary award, a judge may take the incapacity into account in assessing the award for non‑pecuniary damages.

[102]     I acknowledge what was said in Kroeker about segregated non-pecuniary awards “where the special facts of a case” warrant them. In my view, however, segregated non-pecuniary awards should be avoided in the absence of special circumstances. There is no reason to slice up a general damages award into individual components addressed to particular aspects of a plaintiff’s lifestyle. While such an award might give an illusion of precision, or suggest that the court has been fastidious in searching out heads of damages, it serves no real purpose. An assessment of non-pecuniary damages involves a global assessment of the pain and suffering, loss of amenities, and loss of enjoyment of life suffered by a plaintiff. By its nature, it is a rough assessment and not a mathematical exercise.

[103]     The $85,000 figure that I have proposed for non-pecuniary loss takes into account all of the general damages the plaintiff has suffered and will suffer. It should not be augmented by a segregated award for loss of housekeeping capacity.

$110,000 Non-Pecuniary Assessment For Chronic Pain Coupled With Psychological Injury

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

Reasons for judgement were published today by the BC Supreme Court, Vancouver Registry, assessing damages for chronic injuries following a vehicle collision.
In today’s case (Evans v. Keill) the Plaintiff was involved in a 2013 rear end collision that the Defendants admitted fault for.  The crash caused a variety of soft tissue injuries which developed into chronic pain coupled with psychological injury.  The consequences impacted her vocationally with a poor prognosis for recovery.  In assessing non-pecuniary damages at $110,000 Madam Justice Matthews provided the following reasons:

[166]     I have concluded that as a result of the accident, Ms. Evans has suffered pain and a loss of enjoyment of life, which will continue into the foreseeable future and from which she is unlikely to ever fully recover.

[167]     As a result of the injuries she sustained in the accident, Ms. Evans suffered from soft tissue injuries to her mid-back, upper back, neck and shoulder. She now has chronic pain in her neck and upper back. The pain is exacerbated by lifting and many different postures, including sitting, standing, certain neck angles and some yoga postures. It is exacerbated by physical activities where her neck or back bears weight, or involves lifting or working with her arms above a certain height. She experiences headaches and migraines. Over the course of two years after the accident the pain has gradually improved by about 60% but has plateaued at its present level. It is permanent and not likely to improve. She has been prescribed analgesics and has taken over-the-counter medications to cope with her pain.

[168]     Before the accident, Ms. Evans’ mood was good and she enjoyed being physically active and social. She hiked several times a week, sometimes with friends, and regularly did yoga. She had a career that she enjoyed and was justifiably proud of given her eligibility for further promotion and that she achieved it without graduating high school. Her injuries rendered her unable to do her job.

[169]     Due to the accident injuries, Ms. Evans suffered two major depressive episodes and somatic symptom disorder. She withdrew socially from her friends. She attempted suicide twice. She drank excessively.

[170]     Overall, Ms. Evans’ life is very different from what she enjoyed prior to the accident. However, after a significant and challenging struggle, she has reworked her life into a place where she is happy.

[171]     The most significant of the Stapley factors in this case are Ms. Evans’ age; the severity and duration of the pain; the impairment of her physical abilities; her associated loss of lifestyle; and the impairment of her relationships. Ms. Evans is relatively young. She was 34 years old at the time of the accident and she was 39 years old at trial. She faces the prospect of a lifetime of chronic pain and associated functional limitations. One of the most significant impacts of her injuries has been the impact on her ability to do her job as a produce manager, which she enjoyed and which was a source of pride…

[181]     In summary, some of the cases cited by Ms. Evans involve other injuries, such as thoracic outlet syndrome, disc herniation or facet joint arthroplasty, on top of chronic myofascial pain and psychological injuries. Most of the defendants’ cases do not include cases where a psychological condition has been diagnosed and/or the chronic pain is not as functionally disabling as that experienced by Ms. Evans. The cases which are most similar are Stapley and Montgomery.

[182]     Having considered the Stapley factors and all the above authorities, I assess non-pecuniary damages at $110,000.

ICBC Vehicle Theft Claim Denied With Help of Damaging Cell Phone Records

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dismissing a lawsuit seeking insurance coverage for vehicle theft.
In the recent case (Winterbottom v. ICBC) the Plaintiff owned a Ford F150 which he reported stolen.  It was located a few days later in a remote location and was destroyed by fire.
ICBC denied coverage to the Plaintiff and he sued.  In dismissing the lawsuit the Court noted that cell phone records placed the Plaintiff in the vicinity where the truck was ultimately recovered.  Mr. Justice Blok provided the following reasons highlighting the utility of these records in dismissing the claim:

[113]     Cell phone calls involving Mr. Winterbottom’s phone were the central focus of the case.  At the risk of repetition, I summarize these as follows:

a)    Six calls (three incoming, three outgoing) made between 6:08 pm and 7:21 pm, all of which utilized a cell phone tower located at Ross Road, west of Abbotsford.  This suggests that Mr. Winterbottom’s phone was located south of the Fraser River, and not at his residence, which is where he said he was located at the time;

b)    Two incoming calls, both from Mr. Waardenburg’s phone, made at 9:32 pm and 9:48 pm, which utilized a north-side Sumas Mountain cell phone tower that serviced the very area where the burned-out Truck was found;

c)     An outgoing call to “Todd” at 9:49 pm, which involved a hand-off from the north-side Sumas Mountain tower to a tower located near the Mission Bridge, indicating a movement of the cell phone from east to west.  This would be consistent, for example, with the movement of the phone along Lougheed Highway on the north side of the Fraser River;

d)    Nine calls made between 10:01 pm on October 21 and 12:25 am on October 22, which utilized a cell tower site west of Mission, a location consistent with Mr. Winterbottom being located either at the Mission Springs pub or at his home;

e)    One call to Mr. Nygaard-Peterson made at 12:25 am on October 22 that involved a hand-off from the west Mission cell phone tower to an Abbotsford-area cell phone tower, indicating southbound movement of the phone, plus a second call at 12:46 am that utilized the second tower only.  These calls suggest Mr. Winterbottom was not located at his home or at the pub; and

f)      Three calls made in the morning of October 22, beginning at 8:39 am.  The first call involved a hand-off between two Abbotsford-area cell towers, indicating either movement of the phone or a call made in an overlap area.  The second call utilized the Ross Road cell tower west of Abbotsford.  A third call utilized the Ross Road tower and then handed the call off to a cell tower near Sumas Mountain, thus indicating a west to east movement of the cell phone.  In all cases, the calls are not consistent with Mr. Winterbottom being located at his home.

[114]     Neither Mr. Winterbottom nor Mr. Nygaard-Peterson had any explanation why they would have been phoning one another during the time they had said both of them were located at the Mission Spring pub, although Mr. Nygaard-Peterson speculated that he might have lost his phone or stepped outside.  Mr. Waardenburg had no recollection of the calls and had no idea why he would have been in phone contact with Mr. Winterbottom so often during the relevant time frame.  Both Mr. Winterbottom and Mr. Nygaard-Peterson denied being anywhere other than the Mission Springs pub or the Winterbottom home that night.

[115]     I conclude that the cell phone and cell tower evidence given by Mr. Funk is reasonably reliable and accurate.  His evidence was not undermined in cross-examination.  The plaintiff’s assertion that all cell towers utilized by Mr. Winterbottom’s cell phone were within their standard 35 km range in relation to the pub or the Winterbottom residence ignores Mr. Funk’s evidence that the 35 km figure is merely the licenced range and does not reflect the actual range or coverage.  Mr. Funk’s extensive field testing of actual coverages satisfies me that his evidence can be reasonably relied upon to determine general areas where a cell phone was located or where a cell phone was not located.  While there may be room for occasional aberrations due to topology or physical barriers, etc., for the large number of calls involved in this case to be inaccurate would mean that there would have to be aberrations in almost every instance.  I am satisfied from Mr. Funk’s evidence that this is unlikely in the extreme.

[116]     I agree with the observation of plaintiff’s counsel that the plaintiff appeared to give his evidence in a forthright manner.  So did his witnesses, although their evidence was generally to the effect that they were too drunk to remember much.  There were, however, problems with their evidence.  For example, there was no consistency between the plaintiff and his witnesses about how he got home from the pub.  I agree that those particular inconsistencies might be explained by extreme drunkenness, but the cell phone calls are not so easily explained away.  There is no explanation why the plaintiff and Mr. Nygaard-Peterson were phoning one another when, according to their evidence, they were both at the pub or, later, at the Winterbottom residence.  Mr. Winterbottom agreed he woke up at 10 am the next morning, but he could not explain how that testimony reconciled with the five cell phone calls made from his phone between 8:39 am and 9:43 am that morning other than to say he did not remember them.  Critically, his testimony about where he was located contradicted with the evidence of his cell phone location at various points that night and the next morning.  None of this evidence adds up.

[117]     The cell phone evidence is reliable and cogent, and it persuades me that Mr. Winterbottom was not where he said he was that night.  It also indicates that at one point in the evening Mr. Winterbottom’s cell phone utilized a cell tower that serviced the same rural area where the burned-out Truck was found.  Perhaps most importantly, the cell phone and cell tower evidence persuades me that Mr. Winterbottom’s evidence cannot be relied upon.

[118]      In a case such as this, the burden is first on the insured to show a loss falling within the scope of the insurance coverage, which here is theft.  The only evidence of theft comes from Mr. Winterbottom.  I conclude that there are so many difficulties with the evidence of Mr. Winterbottom, centred on the discrepancies between his testimony about where he was compared to the cell phone location evidence, that I cannot rely on his evidence to prove that a theft occurred.

$140,000 Non-Pecuniary Damage Assessment for Collision Related Chronic Pain

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

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $140,000 for injuries leading to chronic pain following a vehicle collision.
In today’s case (Ferguson v. Watt) the Plaintiff was involved in a 2013 collision caused by the Defendant.  The Plaintiff suffered “injuries to her jaw, chest, thumbs and left knee, as well as soft tissue injuries“.  While many of the injuries recovered the Plaintiff continued “to suffer from chronic pain in her neck, upper back, right shoulder and left knee, and fluctuating levels of sleeplessness, depressed mood and frustration.“.
The Defendant unsuccessfully challenged the Plaintiff’s credibility at trial.  In assessing non-pecuniary damages at $140,000 Madam Justice Marzari provided the following reasons:

[196]     I find on all the evidence that Ms. Ferguson’s injuries have resulted in chronic, persistent, disabling pain which continues to impact her. The life she has ahead of her is not likely to be as enjoyable as a result of the accident and the injuries that continue to affect her – causing pain, discomfort, sleep disruption, loss of self esteem, limiting her recreational activities, causing her to take medication that may compromise her long term health, diverting time and energy to attend therapy, causing her to have less energy to engage in activities outside of work, and causing her stress and anxiety about her future. Most significantly, the accident has forced her to abandon the operating room. This has affected her identity as a capable and significant contributor to the direct care of patients, and has led her to question her own worth. While she still identifies as a nurse, and continues to wear her scrubs years after the accident even in her management roles, her sense of loss in this regard is acute and ongoing.

[197]     I would note in this case in particular that Ms. Ferguson’s stoicism and perseverance in working through her pain has undoubtedly reduced her financial losses. I do not find, however, that it suggests that she is any less in pain, or less emotionally affected by the loss. To the contrary, I find that she has worked harder to make up for any lag in her physical or mental abilities caused by the accident and her ongoing symptoms and medications.

[198]     In these circumstances, I find that her non-pecuniary losses are particularly significant and require compensation. I award $140,000 in non-pecuniary damages.

Plaintiff Ordered to Pay Double Costs After Jury Dismisses Injury Claim

Written by admin on . Posted in BC Supreme Court Costs Cases, Jury Trials.

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, ordering a Plaintiff to pay double costs to a Defendant after a jury dismissed her injury claim.
In the recent case (Brar v. Ismail) the Plaintiff alleged injury following a collision and sued for damages.   Prior to trial the Defendants offered to settle for $50,000.  A further offer of $65,000 was tabled.  Neither side compromised and the Plaintiff proceeded to trial where damages of over $500,000 were sought.  The Defendants attacked the Plaintiff’s credibility and introduced surveillance evidence which the court called “compelling”.
The Jury ultimately dismissed the claim.  In ordering that the Defendants were entitled to pre offer costs and post offer double costs Mr. Justice Myers provided the following reasons:

[23]     The issue of whether an offer to settle ought reasonably to have been accepted is determined by the factors existing at the time of the offer and not with the hindsight of a judgment or jury verdict.

[24]     The main point this question hinges on is whether the credibility issues were obvious and significant enough to the plaintiff so that she ought to have accepted one of the offers.

[25]     From at least the time the video surveillance was delivered, it was obvious that the plaintiff’s credibility would be front and center.  There were inconsistencies between what it showed and what she relayed to her experts.  It was also obvious these inconsistencies would have a significant impact on her case.  I do not agree with the plaintiff that what was seen in the video was not far off what she had had told her experts or said in evidence.  Often video surveillance is not compelling; here it was.

[26]     Moreover, as argued by the defendants, the plaintiff also had further credibility difficulties that ought to have been apparent to her counsel:

·        The plaintiff’s evidence was that she hit her head in the accident and had immediate dizziness and nausea including vomiting at the accident scene; however, these complaints were not documented in her GP’s records during her initial visit, which was only hours after the accident.  Her GP testified that he would have made a note of these complaints if they were made to him.

·        The plaintiff’s evidence that she was disoriented and vomited at the accident scene was contradicted by Mr. Ismail’s evidence and that of his brother;

·        In her discovery, the plaintiff said she had not done any form of work, whether paid or voluntary.  She had also stated during her examination for discovery that she never helped her husband in his business (even though she was president and 100% shareholder).  However, at the trial she acknowledged she had in fact done work for her husband’s business since the accident.  Further the surveillance video showed the plaintiff working at an elections voting station.

·        At examination for discovery the plaintiff stated she did not have any other sources of income other than what she received from her employer, Swissport.  She also said she did not own any other properties other than her primary residence.  However, her income tax records showed significant amounts of rental income, and she later admitted at trial that she and her husband received rental income from a property she was on title for.  Her reported rental income was more than she had ever earned from Swissport before the accident.

…

[37]     I said I would return to the timing of the second offer  There was nothing to prevent the defendants from providing the surveillance far sooner, given its importance; as noted above, it was completed in January 2018.  The fact that it was disclosed in compliance with the rules does not mean that its timing cannot be a consideration with respect to the discretion to award double costs.  As well the $65,000 offer, which was not delivered until five days before trial, could have been delivered sooner.  This would have given the plaintiff more time to consider her position, without prejudicing the defendants.  Therefore, in my view, the defendants should receive ordinary costs up to and including the first five days of trial and double costs after that.