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ICBC's "Checkered Record" of Funding Treatments Impacts Part 7 Deduction Request

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, scrutinizing ICBC’s “checkered record” of paying for a plaintiff’s medical treatments.
In today’s case (Olson v. Farran) the Plaintiff was injured in a collision and was awarded just over $92,000 in damages including special damages and funds for future care costs.  The Defendant, who was insured with ICBC, requested certain damages to be deducted because of the overlapping coverage for some expenses under the Plaintiff’s own ICBC policy.
Mr. Justice Pearlman denied aspects of the request raising concern about ICBC’s “past partial and disrupted” payments.  In doing so the Court provided the following reasons.

[71]         The onus of showing that a deduction should be made is on the defendant.  I must estimate the amount to which Ms. Olson is entitled, exercising caution and taking into account any uncertainty concerning whether the benefits will be paid.  Any such uncertainty must be resolved in favour of the plaintiff.

[72]         Based on the Dr. Garbuz’s opinion, and the defendant’s position at trial that Ms. Olson would benefit from a three to six-month exercise program under the supervision of a physiotherapist, I am satisfied that a portion of the physiotherapy will be paid. I estimate that amount to be $500 and order that the amount to be deducted with respect to the physiotherapy is $500.

[73]         In light of the Corporation’s past partial and disrupted payment for kinesiology, there is no certainty that the Corporation will pay for any further kinesiology treatments. I therefore decline to deduct any portion of the $800 sought by the defendant for kinesiology sessions.

[74]         Similarly, there is no certainty that the insurer will pay for future massage therapy treatments, particularly where such treatments may only provide temporary relief to Ms. Olson, rather than a lasting improvement in her condition.  Again, I decline to deduct any portion of the $920 sought by the defendant for massage therapy.

[75]         The defendant also seeks a deduction of $870 for psychological services. Psychological therapy is a benefit payable in the Corporation’s sole discretion under s. 88(2)(f) of the Regulation.

[76]         The defendant submits the Court should conclude from ICBC’s past funding for physiotherapy and active rehabilitation that there is no uncertainty about whether the Corporation will fund psychological therapy for the plaintiff.  

[77]         I disagree.  The Corporation’s checkered record of funding the plaintiff’s treatment before trial raises significant uncertainty about whether this benefit will be paid. Further, Mr. Phan, the Corporation’s representative, offers no assurance in his affidavit that ICBC will pay for psychological therapy for Ms. Olson.  Nor is there any opinion from the Corporation’s medical advisor, as required under s. 88(2), that the psychological services are likely to promote the rehabilitation of the insured. The uncertainty concerning whether this benefit will be paid must be resolved in favour of the plaintiff. I am not satisfied the Corporation will pay any portion of this benefit. Accordingly, there will be no deduction for psychological therapy.

[78]         The deductions from the award of costs of future care for Part 7 benefits total $4000.

Court Declines To Reduce Care Award Where "Health Benefits Program for Aboriginal Persons" May Cover Expenses

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, addressing whether a cost of future care award for a First Nation’s plaintiff can be reduced where the federal government’s health benefits program for Aboriginal persons may cover the needed treatments.
In today’s case (Watkins v. Harder) the Plaintiff was involved in a 2012 rear-end collision that the Defendants accepted blame for.  The Plaintiff was injured and was awarded damages for chronic soft tissue injuries at trial.  These included damages for future care costs.  The Defendants argued that these should be reduced by the amount of any payments that could be claimed under the health benefits program for Aboriginal persons.  Mr. Justice Gaul refused to make the deduction and in doing so provided the following reasons:

[75]         Mr. Benning estimates that the present day value of the costs of Ms. Watkins’ Tylenol 3 and Extra Strength Advil amount to approximately $12,500. The defendants do not challenge these costs but argue that, like the physiotherapy costs, the costs for these medications will likely be paid by the federal government under its health benefits program for Aboriginal persons. Consequently, to avoid Ms. Watkins’ unjustified double recovery, the defendants contend these costs should be deducted from any cost of future care award.

[76]         Ms. Watkins argues that to deduct her anticipated physiotherapy costs and her medication costs from a cost of future care award would be to force her into a position where she is reliant solely on the state to pay for these expenses when they are more properly attributable to the defendants’ admittedly negligent conduct. In this regard she relies on Harrington v. Sangha, 2011 BCSC 1035, which addressed the deductibility of benefits provided under the PharmaCare program. In that case, Mr. Justice Willcock found there was no risk of double recovery as the evidence showed that the program was intended to be an insurer of last resort and would not provide benefits where a tort award provided compensation for those costs. To deduct the costs from an award would be to presume the plaintiff would make a fraudulent claim for PharmaCare benefits. It was noted, however, that PharmaCare had made submissions on this issue and so was aware of any potential tort award, making double recovery unlikely (see: paras. 160-162).

[77]         In Mitchell v. We Care Health Services Inc. et al., 2004 BCSC 902, the plaintiff, a member of the Kwumut Lelum First Nation, was rendered a quadriplegic in a motor vehicle accident. On account of her injuries and as a part of her ongoing treatment, Ms. Mitchell used a variety of prescription and non-prescription medications. At trial the defendants argued the costs associated with those medications should not form part of any award for the costs of future care because they would be paid for under the federal government’s health benefits program for First Nations persons. Mr. Justice Kelleher declined to make any deduction on the basis that the plaintiff would not be eligible for the benefits program because of the tort claim compensation. A factor that distinguishes this case from Ms. Watkins’ is that Justice Kelleher had evidence before him from the acting manager of the health benefits program on that specific point (para. 124).

[78]         Other decisions not referred to by counsel indicate these benefits are generally not deducted from tort awards. In Whetung v. West Fraser Real Estate Holdings Ltd., 2007 BCSC 990, Mr. Justice Grist refused to make a deduction for health benefits received as a result of the plaintiff’s Aboriginal status. He noted at para. 71 that the “defendant’s obligation should not be put aside on the basis of possible double coverage where the social source is only prepared to be called on should any prior obligation fail”. Again, unlike the present case, there was evidence before Justice Grist that the coverage under this program only extended where no other source of funding was available.

[79]         In Cottrelle v Gerrard, [2001] O.J. No. 5472 (S.C.J.) the court took the opportunity to summarize the evidence on the nature of the health benefits program for Aboriginal persons. Madam Justice Leitch concluded at para. 103 that the publicly-funded benefits program was a matter of policy and, as such, even though there was no evidence to suggest the program would be terminated or the benefits would be reduced, there was no guarantee the benefits would continue. On this basis, the court did not deduct such benefits from the damage award. The decision was later overturned on the issue of liability and the issue of deductibility was not considered (Cottrelle v. Gerrard, [2003] O.J. No. 4194 (C.A.)).

[80]         In H.L. v. Canada (Attorney General), 2001 SKQB 233, at para. 71 the health benefits provided to Aboriginal persons were deducted from a tort award. The fact that the defendant government of Canada was both the tortfeasor as well as the benefits provider is an important distinguishing feature of that case. On appeal the court overuled the trial judge’s decision, concluding that the intensive therapy required by the plaintiff would not be covered under the benefits program and should therefore be compensated through the tort award (H.L. v. Canada (Attorney General), 2002 SKCA 131 at paras. 259-63).

[81]         Neither party has provided any evidence with regards to the nature of the benefits Ms. Watkins is entitled to as a result of her status as an Aboriginal person. I have no evidence before me regarding her continued entitlement or the certainty of the benefits provided under the program, or on the eligibility for benefits when an alternative source of funding, such as a tort award, is available.

[82]         In these circumstances I cannot conclude that the cost of the treatments and medications in question should be deducted from the award Ms. Watkins is entitled to for her future care costs. As was noted in Harrington, without any evidence to suggest it, I cannot presume that the plaintiff would make a fraudulent claim for publicly-funded health benefits. On this basis, I do not find that an award that provides for full compensation of these costs results in double-recovery for Ms. Watkins.

"Common Sense" Used to Uphold Diminished Earning Capacity Award

Written by admin on . Posted in ICBC Wage Loss.

Reasons for judgement were released this week by the BC Court of Appeal upholding an award for diminished earning capacity based on “common sense“.
In the recent case (Ali v. Glover) the Plaintiff was involved in two collisions and suffered chronic aggravation of degenerative issues in his neck and back.  The Plaintiff was able to continue working with his long-standing employer although some accommodations were made for limitations his injuries caused.  At trial the Court awarded $110,000 for diminished earning capacity on the basis that the Plaintiff’s injuries were permanent and very well could impact earning capacity in the future should he lose his present employment.
ICBC appealed arguing this award was rooted in speculation.  The BC Court of Appeal disagree noting it is simply a matter of common sense.  In upholding the assessment the Court provided the following reasons:
[19]         Mr. Ali’s case for damages for a loss in his earning capacity was based on the injury to his back precluding him from finding employment that would otherwise be available to him should the need arise.  The company for which he has worked for over 20 years has made adjustments to accommodate his limitations such that he does not do much of the “heavy lifting” that he once did, but for one reason or another his employment may be reduced in terms of the work available that he can do or be terminated altogether.  His loss is essentially one of a capital asset in that, because of his injury, he is less capable of earning income from all types of employment, less marketable, less able to take advantage of all employment opportunities which, save for his injury, may have been available to him, and less valuable to himself as an income earner, all as discussed in Brown v. Golaiy (1985), 26 B.C.L.R. (3d) 353 (S.C.).  The judge concluded:
[157]    I am satisfied the plaintiff has proven there is a real and substantial possibility of loss of income earning capacity in the future. He has an accommodating employer but she may retire and sell or reduce his wage to one commensurate with the hours he is working on set up and supervising and not allow him to draw on a dwindling overtime bank. If he loses his job he is less valuable to himself and potential employers because he is not fully able to do physical work.
[20]         The appellants do not challenge the judge’s determination of the quantum of the award; they contend that no loss has been proven.  They maintain the judge’s conclusion is based entirely on speculation that Mr. Ali may not be able to continue working in his present capacity earning the salary he is paid.  But the fact remains, Mr. Ali’s marketability has been impaired by the injury he suffered; he is not capable of doing heavy physical work so some employment that would otherwise be available to him is now foreclosed.  The judge made no fundamental error in concluding, as she did, there was a real and substantial possibility of Mr. Ali being able to earn less income in the future and giving what amount to examples of why there is no assurance Mr. Ali will always be employed as he is earning the income he does.  What is said to be speculation devoid of evidentiary support is largely a matter of common sense. 
[21]         I would not give effect to the fifth ground of appeal.

$100,000 Non-Pecuniary Assessment For Chronic Low Back Injury

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury.
In today’s case (Truong v. Lu) the Plaintiff was involved in a 2011 collision the Defendant accepted fault for. The Court found the collision caused a chronic low back injury that was amplified by non-collision related depression.  In assessing non-pecuniary damages at $100,000 Mr. Justice Affleck provided the following reasons:

[78]         The termination of Mr. Truong’s employment, particularly at the age of 58 when other employment was difficult to find, was an emotionally catastrophic event for him. He believed erroneously but sincerely that the job loss must have been connected to his poor performance on the job, which had been caused by the accident injuries. He was naturally upset by the immediate effects of the accident and in that sense was depressed emotionally by those effects and by his fear that he might lose his job. After that loss occurred he descended into a major depression. I believe the precipitating event that caused the major depression was the loss of employment and thereby the loss of his self-respect. I accept Dr. Shaohua Lu’s evidence that the major depression would not have happened without the job loss.

[79]         Even without the depression I find Mr. Truong would have experienced physical pain and discomfort for some considerable time after the accident. I find the plaintiff’s low back pain, which travels into his left leg, as well as his neck pain, even in the absence of the major depression, would have continued but gradually diminished over the last five years. It will remain chronic indefinitely into the future, but with medication for pain relief will no longer limit his ability to function to any significant extent.

[80]         The defendant is critical of much of the plaintiff’s evidence as unreliable and accuses him of embellishment particularly for example when undergoing a functional capacity evaluation. I agree there was some embellishment but I believe it was not deliberate deceit. Mr. Truong genuinely believes he is severely disabled and adjusts his behaviour, without conscious thought, to fit the way he sees himself. He is also very reluctant to push his physical boundaries because of a fear of further injuries. In my view that fear is not justified and there is no risk of further injury if he becomes more active…

[86]         I have been referred by the parties to numerous cases in which non-pecuniary damages were awarded. I need not review those authorities in these reasons for judgment. I am persuaded a substantial award should be made under this head of damage largely because, apart from his work with C2 Imaging the plaintiff’s handyman role at home provided him with one of his main pleasures in life and in late middle age he has been deprived of that role for at least several years. I award $100,000 under this head of damages.

Limitation Period Dismisses Two ICBC Injury Claims

Written by admin on . Posted in Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Victoria Registry, dismissing two ICBC injury claims for being brought beyond the applicable limitation period.
In the recent case (DeWolfe v. Jones) the Plaintiff spouses were both injured in a 2005 collision.  They dealt with ICBC directly but never reached settlement.  During a conversation the acting adjuster, in response to the Plaintiffs advising they were not prepared to settle at the time told them that “I am leaving on maternity leave at month end and he knows that he can call to settle if things improve at any point.”
The Plaintiffs failed to start a lawsuit in time and argued that this statement from ICBC should prevent them from raising the limitation defense.  Mr. Justice Gaul disagreed and dismissed the lawsuits.  In reaching this decision the Court provided the following reasons:
[48]         In my opinion, Ms. Johal did not state or infer that liability had been accepted by the defendants to the extent that the only remaining issue was the quantum of damages. The parties had not entered into negotiations, only discussions in which Ms. Johal came to the conclusion that the plaintiffs did not want to consider settlement at that point.
[49]         Finally, even if the plaintiffs were able to establish that liability had been admitted and a promise made, I am of the view that they are unable to demonstrate they relied on such an assurance to waive the limitation period. In her examination for discovery, Mrs. DeWolfe admits that the main reasons why she did not commence her legal action earlier was that she simply did not realize there was a time frame in which she had to do so, and that “life just got busy”.
[50]         Although case authorities such as Esau v. Co-Operators Life Insurance Company Limited, 2006 BCCA 249, have commented on the advisability of insurers informing their clients of limitation periods, for better or worse the law remains unchanged. In my view, ICBC had no obligation or duty to raise the limitation period issue with the plaintiffs. Consequently, the plaintiffs’ assertion that they were unaware of that period is insufficient to ground a claim of promissory estoppel.
[51]         In my opinion, although the parties had discussed the possibility of settling the plaintiffs’ claims, there were no serious negotiations towards that end. At no point did ICBC concede to the plaintiffs that the defendants were responsible for the Accident and in my view there is no persuasive evidentiary foundation to infer that only the quantum of damages remained as an issue to be settled between them.
[52]         Finally, I am not convinced that the plaintiffs relied to their detriment on any assurances made by Ms. Johal or any other representative of ICBC.
[53]         In light of these findings, I conclude the defendants are not estopped from relying on the valid and complete defence that is available to them under the Limitation Act.
[54]         The defendants’ applications are granted and the plaintiffs’ actions are dismissed.

$65,000 Non-Pecuniary Assessment for Lingering but Non Disabling Soft Tissue Injury

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

In the latest addition to this site’s soft tissue injury assessment database, reasons for judgement were released today by the BC Supreme Court, assessing damages for a lingering but not disabling neck and upper back soft tissue injury.
In today’s case (Dhaliwal v. Randhawa) the Plaintiff was involved in a 2011 collision that the Defendant was found wholly responsible for.  The Plaintiff suffered an upper back and neck soft tissue injury that, while somewhat improved, continued to cause persistent symptoms to the time of trial.  Despite the long lasting lingering symptoms the injuries were not expected to be disabling.  In assessing non-pecuniary damages at $65,000 Mr. Justice Butler provided the following reasons:
[48]         When I examine all of the evidence, I reach the following conclusions about the nature and extent of Mr. Dhaliwal’s injuries and symptoms. He suffered a soft tissue injury to his upper back and the base of his neck. He may have suffered a minor soft tissue injury to his lower back but this was resolved within six weeks of the accident. The upper back, shoulder and neck symptoms persisted for more than two years. However, by September 2013, the symptoms were significantly less serious. While the symptoms have persisted up to the present time, they do not inhibit his ability to work or carry on with activities of daily life…
[58]         When I apply the considerations to the facts I have found, I conclude that a fair award in all of the circumstances of this case is $65,000. In arriving at that assessment, it is particularly significant that Mr. Dhaliwal is young and will suffer continuing, but manageable and non-disabling discomfort in his neck, shoulders and upper back. In other words, his discomfort may continue for a long time. At the same time, the more severe neck, shoulder and upper back pain was of limited duration. Further, any lower back pain after 2011 was not related to the accident. In addition, outside the 6 to 12 months following the accident, he has not experienced a significant impairment in his lifestyle and daily activities…

[61]         Of the cases the parties cite, Jiwani is the most similar to Mr. Dhaliwal’s circumstances. There the court found that the plaintiff suffered from back pain which had persisted for four-and-a-half years and was likely to continue. At para. 46, Sigurdson J. set out his conclusions which are similar in important respects to those which I have arrived at here:

… While I am persuaded that the plaintiff still has lower back pain, I am not satisfied that he is as seriously injured as he contends.  The plaintiff’s soft tissue injury to his lower back has persisted but I find that in due course any back pain will improve and if it persists will be of a type that causes modest discomfort and requires him to change positions and not sit for too long. 

[62]         In a similar vein, I have concluded that Mr. Dhaliwal still suffers upper back pain but I have not accepted that the pain is as serious as he contends or that the low back pain was caused by the accident. As in Jiwani, Mr. Dhaliwal continues to suffer pain which is of “a type that causes modest discomfort”. He will continue to be able to take part in all of his recreational, home and work activities. He will need to have occasional manipulations or massages to assist with management of his symptoms.

$85,000 Lumbar Facet Syndrome Non Pecuniary Award Survives Appeal

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

Reasons for judgement were released today by the BC Court of Appeal dismissing the appeal of an $85,000 non-pecuniary award for a chronic low back injury.
In today’s case (Villing v. Husseni) the Plaintiff was injured in 2010 in a collision caused by the Defendant.  She suffered a low back injury diagnosed as Lumbar Facet Syndrome.  In finding nothing wrong with the trial judge’s $85,000 assessment of non-pecuniary damages the BC Court of Appeal provided the following reasons:

[9]             Both parties commissioned expert reports on the nature of Ms. Villing’s injuries.  Dr. Pankaj Dhawan, a physiatrist, testified at trial for Ms. Villing.  Dr. Robin Rickards, an orthopaedic surgeon, testified for the defendant, Ms. Husseni.  Both experts diagnosed lumbar facet syndrome.  A patient with lumbar facet syndrome will often have pain triggered by rotation, lateral flexion, and extension of the involved spinal segment.  Ms. Villing experiences this type of chronic back pain.

[10]         Dr. Rickards recommended that she try medial branch blocks and radio frequency facet rhizotomy.  Medial branch blocks inject local anesthetic to temporarily freeze the nerve affecting the involved facet.  A rhizotomy involves the insertion of needle-like electrodes into the bases of the nerves of the involved facet, and the application of heat to destroy the subject nerves.  The rhizotomy would be performed if the medial branch blocks were successful.  These procedures would be performed under a local anesthetic in an outpatient department.  These procedures carry a high expectation of success, although success does not entail total and continuing relief.

[11]         A medial branch block requires no time off work.  A rhizotomy can be more uncomfortable and may result in increased back pain for 7‑10 days.  Time off work or work modification may be required.  In most cases, significant relief is experienced four to six weeks following treatment and the patient is expected to then return to full work duties and activities.

…

[40]         The appellant referred the Court to five decisions in support of its position that the $85,000 award for non‑pecuniary damages should be reduced to $50,000–$60,000.  Those cases were Engqvist v. Doyle, 2011 BCSC 1585 ($70,000 for a 70‑year-old plaintiff with similar injuries); Perry v. Ismail, 2012 BCSC 123 ($42,500 where there was delayed recovery for not following the advice of a physician); Burton v. Insurance Corporation of British Columbia, 2011 BCSC 653 ($35,000 for a moderate soft tissue injury, which after two-and-a-half years was expected to continue to improve); and Sandher v. Hogg, 2010 BCSC 1152 ($40,000 for continued pain of uncertain duration, which was reduced for failure to adhere to a recommended exercise regime).

[41]         The respondent referred the Court to cases where young plaintiffs suffer chronic back pain, such as: Dickenson v. Passero, 2015 BCSC 908 ($100,000); Pett v. Pett, 2009 BCCA 232 ($85,000); Ruscheinski v. BiIn, 2011 BCSC 1263 ($85,000); Doho v. Melnikova, 2011 BCSC 703 ($80,000); Roberts v. Scribner, 2009 BCSC 1761 ($95,000); and Kirkham v. Richardson, 2014 BCSC 1068 ($120,000).  The respondent also referred to Engqvist v. Doyle ($70,000) as a case involving a similar injury, albeit a much older plaintiff.

[42]         An award of damages is a fact-finding exercise and attracts a deferential standard of review:  Ostrikoff v. Oliveira, 2015 BCCA 351 at paras. 2–3.  It is not for this Court to substitute its own opinion for that of the trial judge except where it can be said that the assessment is so inordinately high as to be wholly erroneous: Woelk v. Halvorson at 435–36.  While the award in the present case may be a generous one, I am unable to conclude that it is so inordinately high as to be wholly erroneous.  I would dismiss the second ground of appeal.

Plaintiff Stripped of Trial Costs Following Judgement Below Settlement Offer

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

Reasons for judgement were released today stripping a plaintiff of trial costs and further ordering the Plaintiff to pay the Defendants trial costs after failing to beat a defense formal settlement offer at trial.
In today’s case (Ben-Yosef v. Dasanjh) the Plaintiff was struck in 2011 by the Defendant’s vehicle while crossing a cross-walk.  The Plaintiff suffered from a pre-existing and longstanding chronic pain disorder.    The collision resulted in soft tissue injuries and aggravated the pre-existing condition.
Prior to trial ICBC offered to settle the claim for $70,000.  The Plaintiff declined this offer and proceeded to trial where damages of just over $32,000 were assessed.
In finding the pre trial offer reasonable and attaching costs consequences for failing to beat it Mr. Justice Bowden provided the following reasons:

[8]             The rules on costs are intended to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer. (Hartshorne v. Hartshorne, (2011 BCCA 29)

[9]             In considering whether the offer to settle was one that ought reasonably to have been accepted the circumstances that existed at the time the offer was made should be considered rather than the award that was made using hindsight.

[10]         At the time the offer was made there is no suggestion that the plaintiff was not ready for trial. By that time examinations for discovery would have been completed and documents exchanged along with expert medical reports. In my view, the parties were in as good as a position as they would ever be to assess the relative strengths and weaknesses of the case. (See the comments of Fleming J. in White v. Wang, 2015 BCSC 1080 at para. 10)

[11]         The plaintiff had four business days and a weekend to consider the offer of the defendants and presumably discussed the merits of accepting the offer with his counsel. The defendants’ offer was rejected and no counter-offer was made.

[12]         Fleming J. referred to comments by Griffin J. in Bevacqua v. Yaworski, 2013 BCSC 29, regarding the process at para. 8:

In personal injury claims, in which liability has been admitted, there is in most cases a somewhat predictable range of possible awards. It is to be expected that counsel taking a case to trial will have discussed with their clients the possible range of damages, the evidentiary issues and the risks of and expense of proceeding to trial. It is to be expected therefore that as the trial approaches, counsel and their client have in mind a possible range of recovery and the risks of litigating. Naturally, a plaintiff hopes for an award in the high end of the range and the defendant for an award at the low end.

[13]         In that case the plaintiff was deprived of costs when the defendant delivered an offer to settle on the eve of trial.

[14]         While I understand that the plaintiff attended his daughter’s wedding on the weekend following the making of the offer, there is no suggestion that the plaintiff and his counsel had any difficulty discussing the offer before it expired.

[15]         The offer by the defendants was more than twice the amount that was awarded to the plaintiff.

[16]         As to the relative financial circumstances of the parties other than understanding that the plaintiff has not been employed for some period of time there was no evidence upon which to determine what the financial impact of the cost award sought by the defendants would be on the plaintiff.

[17]         Having considered the factors mentioned and the circumstances of this case, I have concluded that the plaintiff should be deprived of costs from the date of the offer to settle by the defendants until the end of the trial and costs shall be awarded to the defendants for that period.

 

BC Supreme Court Outlines Parameters of Lay Witness Evidence from Doctors

Written by admin on . Posted in Uncategorized.

The line between opinion evidence and fact evidence when given by a physician is sometimes blurred.  Today reasons for judgement were released by the BC Supreme Court, Vancouver Registry, discussing this and outlining the parameters of factual vs opinion evidence from treating physicians.
In today’s case (Cambie Surgeries Corporation v. British Columbia) the Defendant sought clarity about the scope of evidence from physicians.  In discussing these boundaries Mr. Justice Steeves provided the following reasons:

[10]         The treatment of that evidence is well established and has been usefully surveyed by Justice Metzger in a previous judgment (Seaman v. Crook, 2003 BCSC 464):

[14]      The cases Ares v. Venner, supra; Sandu and Brink, Olynyk v. Yeo, supra; Butler v. Latter, [1994] B.C.J. No. 2358 (B.C.S.C.), McTavish v. MacGillivray, supra; Coulter and Ball et al., 2002 BCSC 1740 (CanLII); and s. 42(2) which provides:

            In proceedings in which direct oral evidence of a fact would be admissible, a statement of a fact in a document is admissible as evidence of the fact if…

when taken together, stand for the following:

(1)  That the observations by the doctor are facts and admissible as such without further proof thereof.

(2)  That the treatments prescribed by the doctor are facts and admissible as such without further proof thereof.

(3)  That the statements made by the patient are admissible for the fact that they were made but not for their truth.

(4)  That the diagnoses made by the doctor are admissible for the fact that they were made but not for their truth.

(5)  That the diagnoses made by a person to whom the doctor had referred the patient are admissible for the fact that they were made but not for their truth.

(6)  That any statement by the patient or any third party that is not within the observation of the doctor or person who has a duty to record such observations in the ordinary course of business is not admissible for any purpose and will be ignored by the trier of fact. It is not necessary to expunge the statements from the clinical records as this is a judge alone trial.

[15]      Therefore any, and I emphasize the word “any”, opinions contained in the clinical records are not admissible for their truth. The opinions are admissible only for the fact that they were made at the time.

[16]      Without having met the requirements of Rule 40A, the oral testimony of the doctor interpreting his clinical records does not change the nature of the evidence contained in those clinical records. The clinical records remain evidence of the fact that he made those notes, made that diagnosis, and prescribed a certain treatment.

[17]      The opinions contained in the clinical records do not constitute independent stand-alone expert opinions. If they did, what would be the purpose of Rule 40A? It is the expert’s opinion that the court is weighing. It is the expert’s report that the court will accept or reject. It is not the opinion in the clinical records that the court is weighing.

[11]         As can be seen, much of this parallels the orders sought by the defendant, British Columbia. There is more to be said here, but I adopt the above summary by Justice Metzger. I add two other points.

[12]         First, the causation issue here relates to waiting for a medical procedure and a patient’s rights under s. 7 of the Charter, whether the latter was infringed by the former. I say this to distinguish causation here from causation on a medical chart that most frequently relates to whether a motor vehicle accident, for example, was of causative significance in a patient’s injury. This latter causation issue may be marginally relevant to the constitutional issues in this case.

[13]         This is also an appropriate place to address the plaintiffs’ submission that the Rules of Evidence cannot be used by the defendant British Columbia to require them to call every patient who has had a negative experience in the health care system in order to prove their case. I agree with that submission and point out that it is not the position of the defendant, British Columbia. What is required in this case, as with other cases, is counsel’s judgment as to the type and volume of evidence that is necessary to prove their client’s case.

[14]         A second category of evidence that arises here is evidence from a doctor, who is not certified as an expert, about his or her experience with waitlists: how long they have been, how a patient gets on a waitlist, any care issues that arise while the patient is on the waitlist and other related matters. I can see no impediment to the admissibility of evidence from doctors about their observations of how waitlists operate. This is part of the everyday experience of important actors in the health care system and it can be of value to the court. I note this is not opinion evidence about whether waiting times are medically justified or not justified. Such opinion evidence must come from a certified expert.

[15]         Another related category of evidence is also from a doctor, again not certified as an expert, who testifies about his or her observations as to a patient’s situation while waiting for a medical procedure. These observations can be about a patient being in pain, having restricted movements, not being at work, being anxious and/or depressed and other matters. I conclude that these observations are also admissible. In my view the character of these observations are the same as observations that could be made by a non-doctor. The fact that the witness is a doctor is relevant inasmuch as he or she may use medical language to describe his or her observations. But I see no difference for the purposes of admissibility with a non-doctor testifying about an accident where the victim was bleeding from the leg and a doctor saying the same victim was bleeding from the carotid artery.

[16]         I acknowledge there is an element of opinion in this type of evidence. However, it has been the case for some time that distinctions between fact and opinion can be tenuous and even false (Graat v. The Queen, [1982] 2 S.C.R. 819, at p. 15 (QL)). This development in the law of evidence has been applied in cases involving, for example, non-expert telecommunication workers describing how to determine the location of a cellphone (R. v. Hamilton, 2014 ONCA 339, at paras. 272-9) and a police officer testifying about his observations from years of experience about the operation of street level drug trafficking (R. v. Ballony-Reeder, 2001 BCCA 293, at para. 12).

[17]         In some cases this is called the “compendium statement of fact exception” to the usual requirement for expert opinions (Ganges Kangro Properties Ltd. v. Shepard, 2015 BCCA 522) and in other cases it is called “lay opinion evidence”, American Creek Resources Ltd. v. Teuton Resources Corp., 2013 BCSC 1042, at para. 142).

[18]         In any case I conclude that a doctor’s observations about his patient while waiting for a medical procedure or prior to being put on a waitlist, however that list is defined, are analogous to the accepted forms of this type of evidence in other cases. This includes identification of handwriting, identification of persons, identification of things; apparent age; the bodily plight or condition of a person, including illness; the emotional state of a person, whether distressed, angry and depressed; and other categories (Graat, at para. 46).

[19]         I also conclude that this type of evidence may be generalized to reflect the experience of a doctor over a period of time and experience with a number of patients in the same situation. Of course, at a certain point highly generalized evidence without sufficient particulars cannot be given significant weight. I have in mind here statements such as patients simply being “significantly disabled” or “in significant distress.” A doctor giving this type of evidence is subject to cross-examination, including questions about specific patients, and this might include details of their treatment.

[20]         There can also be some overlap between the issue of opinion evidence and issues of hearsay. As above, a doctor may well testify about his or her observations about patients waiting for a medical procedure. However, including in that evidence what a patient said can be problematic. This may be a fine line and it could result in the doctor disclosing the name of the patient and other information. Obviously in the case of the death of a declarant, the necessity component in the principled approach to hearsay has been met. Other than these general comments, I consider that the issue of hearsay will have to be considered on the basis of individual cases.

[21]         The plaintiffs rely on what they describe as the special relationship between doctors and patients, and this means that anything said in that relationship is admissible, including hearsay. This is described as “a very strong circumstantial guarantee of trustworthiness or indicia of reliability.” I do not doubt the special relationship between doctors and patients; however, there are other special relationships in society, such as parent/child and lawyer/client. There are constraints, legal and otherwise, on conversations in those relationships, but I am not aware of any authority that says that those conversations are not subject to the usual rules of admissibility of evidence in court. I see no basis for treating discussions between doctors and patients in the broad terms urged by the plaintiffs.

[22]         Turning to a fourth and perhaps final category of evidence here, the evidence may include evidence from a doctor, again not certified as an expert, who says a patient is experiencing a specific medical condition caused by waiting for a medical procedure.

[23]         In my view that is an issue that is at the heart of this litigation and ultimately for me to decide. There can be evidence on that issue that would certainly assist the court, but in my view it must be evidence in the form of an expert. To be clear, evidence on that issue or similar issues from a doctor testifying without being certified as an expert is not admissible. I take examples of this from the will-say statements that include a statement that wait times have a significant impact on the health outcomes and quality of life of patients or delayed treatment has a negative impact on the overall well-being of patients. Again, these conclusions are for the court to make based on admissible evidence including observations by physicians, expert reports and evidence from patients.

[24]         I close this discussion by saying, I have considered the trial and Supreme Court of Canada levels Chaoulli matter (Chaoulli v. Quebec (Attorney General), [2000] J.Q. No. 479, 2005 SCC 35). As urged by the plaintiff, I have treated those judgments as a guide to the issues here. I also note that the specific issues raised here were not raised or otherwise decided in Chaoulli (except for comments from the minority judges at the Supreme Court of Canada.) Here the issues are very clearly in dispute and they require consideration and resolution.

 

Motorist Found Fully At Fault For Crash Despite Being Rear-Ended

Written by admin on . Posted in ICBC Liability (fault) Cases.

Although it is the exception rather than the norm, when a motorist is rear-ended they can sometimes be found partly if not fully at fault for a collision.  Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, with such an outcome.
In today’s case (Bingul v. Youngson) the Plaintiff was rear-ended by a dump-truck driven by the Defendant.  The parties had different versions of how the collision occurred but the Court noted concerns with the Plaintiff’s credibility and accepted the Defendant’s testimony.  The court found that the Plaintiff abruptly moved into the lane of traffic occupied by the Defendant when it was unsafe to do so, namely when he was stopping for an intersection up ahead.  In finding the Plaintiff fully at fault and dismissing the claim Madam Justice Baker provided the following reasons:

[53]         Having considered these and other matters relevant to credibility, and taking into account the testimony of Mr. Tupper, which supports the testimony of Mr. Youngson, I conclude that I must and do prefer the evidence of Mr. Youngson about the circumstances of the accident.  I conclude that Mr. Youngson has provided an explanation for the collision − the sudden and unexpected lane change made by Mr. Bingul − that negatives the prima facie assumption of liability on the following driver.

[54]         I am unable to conclude that anything done or not done by Mr. Youngson constituted negligence that caused or contributed to the collision.  Mr. Youngson testified that as he was approaching the intersection with Clark Drive he anticipated having to bring his vehicle to a stop for a red light.  He braked and down-shifted and reduced his speed to 30 to 35 kph as he approached the intersection.  He testified that had Mr. Bingul not suddenly moved into his lane ahead of him, he would have able to bring his vehicle to a complete stop at or before the stop line, but that Mr. Bingul’s move reduced his stopping distance to an unsafe degree.

[55]         Mr. Bingul was aware that there was a large and heavy vehicle in the lane.  I conclude that it was solely Mr. Bingul’s sudden and negligent move into the lane of travel of Mr. Youngson’s large and heavy vehicle that created the risk of collision and resulted in the accident.

[56]         I therefore dismiss the plaintiff’s claims against all defendants.