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"Clearly Established Under Canadian Law" That the Low Velocity Impact Defense Misses the Mark

Written by admin on . Posted in ICBC LVI (Low Velocity Impact) Cases.

Although the “Low Velocity Impact” defense seems to be raised less and less, occasionally it still rears its head in personal injury trials.
Today, reasons for judgement were released by the BC Supreme Court, New Westminster Registry, finding that this defense misses the mark.
In today’s case (Duda v. Sekhon) the Plaintiff was injured in two relatively minor collisions.  The Court ultimately awarded the Plaintiff damages for his injuries but prior to doing so made the following pointed comments about the merits of the LVI Defence –

[62]         Counsel for the defendants spent considerable time and effort making the submission that the two accidents did not cause significant motor vehicle damage. However, it has been clearly established in Canadian law that minimal motor vehicle damage is not “the yardstick by which to measure the extent of the injuries suffered by the plaintiff”. Mr. Justice Macaulay stated in Lubick v. Mei and another, 2008 BCSC 555 at para. 5:

The Courts have long debunked as myth the suggestion that low impact can be directly correlated with lack of compensable injury. In Gordon v. Palmer, [1993] B.C.J. No. 474 (S.C.), Thackray J., as he then was, made the following comments that are still apposite today:

I do not subscribe to the view that if there is no motor vehicle damage then there is no injury. This is a philosophy that the Insurance Corporation of British Columbia may follow, but it has no application in court. It is not a legal principle of which I am aware and I have never heard it endorsed as a medical principle.

He goes on to point out that the presence and extent of injuries are determined on the evidence, not with “extraneous philosophies that some would impose on the judicial process”. In particular, he noted that there was no evidence to substantiate the defence theory in the case before him. Similarly, there is no evidence to substantiate the defence contention that Lubick could not have sustained any injury here because the vehicle impact was slight.

$45,000 Non-Pecuniary Assessment For Lingering "Moderate" Soft Tissue Injuries

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

Adding to this site’s archived case summaries of soft tissue injury damage awards, reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for moderate soft tissue injuries.
In today’s case (Wong v. Toor) the Plaintiff was involved in a 2013 rear end collision.  He suffered a moderate soft tissue injury to his neck which was ongoing at the time of trial and posed some lingering difficulties which were expected to continue.  In assessing non-pecuniary damages at $45,000 Madam Justice Young provided the following reasons:

[57]         I will analyse the factors before arriving at my conclusion:

(a)            The plaintiff was 69 years of age at the time of the accident and 71 at the time of trial.

(b)            He sustained a moderate soft tissue injury to the neck.

(c)            The pain has ranged between the mild to moderate range and I find that the residual effect of the accident is in the mild/intermittent range but is likely to be permanent.

(d)            There are intermittent periods of disability where the plaintiff only gets relief from lying down and resting.  He might get more effective relief if he were to take analgesics or pursue more acupuncture.

(e)            I find that Mr. Wong has residual discomfort with driving.  It is not completely debilitating.  He is able to drive but he still feels some ill ease at stop lights.

(f)              There has been some loss of enjoyment of life.  Mr. Wong enjoyed excellent health before the accident and now he suffers intermittently from neck pain that never goes away.  He has curtailed certain leisure activities that he used to enjoy and I find that the pain and fear of driving contributed to his decision to retire.

[58]         Given those findings, Mr. Wong is entitled to $45,000 for general damages.

BC Court of Appeal Confirms Negligence for Passing Vehicle Blanketing Others in Snow

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

Reasons for judgement were released today by the BC Court of Appeal confirming that a motorist can be negligent by passing others in poor conditions therby blanketing the other vehicles in snow.
In today’s case (Link v. ICBC) the Plaintiff was travelling in winter driving conditions when “the front windshield of his vehicle (was blanketed with snow by a passing sport utility vehicle” following which the Plaintiff lost visibility, tapped his brakes, and lost control of his vehicle resulting in a single vehicle collision.
At trial the Defendant vehicle was found at fault for the collision.  ICBC’s appeal was dismissed with the BC Court of Appeal finding negligence can exist in these circumstances.  The Court provided the following reasons:

[12]        It appears to me it was clearly open to the judge to find that the speed of the SUV was excessive for the conditions. The plaintiff was travelling 40 to 60 kilometers per hour and, on his examination for discovery (the whole transcript of which ICBC put in evidence), he said the SUV “roared right by” and suggested it was twice as fast as he was “putting along”. He agreed that could have been 100 kilometers an hour, although he said he could not speculate because it all happened so fast. There was, of course, no evidence to the contrary and common sense dictates that, as any driver would know, the greater the speed of a vehicle the greater the amount of snow it may throw up when changing lanes on a snow-covered highway. It simply could not be said that if the SUV had passed more slowly and had not cut in front of the Jaguar as quickly as it did, the windshield of the Jaguar would have been completely obscured as it was. The speed of the SUV was excessive for the conditions because of the effect its speed had.

[13]        In my view, no error has been shown in the judge’s concluding that, in what he described as the “treacherous” conditions prevailing, the driver of the SUV had not met the standard of care required of him in the circumstances. That vehicle was required to be operated with due care and attention and with reasonable consideration for the plaintiff who was driving the Jaguar at a slow speed in the right-hand land. If undertaken, the passing and change of lanes was required to be done safely without adversely affecting the travel of that vehicle. It was open to the judge to conclude as he did the driver of the SUV knew or ought to have known the risk that was inherent in his operating that vehicle as he did. Clearly the standard of care was breached.

[14]        It follows that I would dismiss the appeal.

No Costs Consequences With Formal Offer Bested by "Almost Negligible Difference"

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, refusing to award discretionary costs where a defence formal settlement offer was not beat by a plaintiff by an “almost negligible difference“.
In today’s case (Zhao v. Yu) the Plaintiff was injured in a collision and sued for damages.  Prior to trial the Defendant issued a formal settlement offer of $93,500.  The Plaintiff declined and proceeded to trial where damages of $91,700 were assessed. The Defendant asked for trial costs but the Court dismissed the application finding it was not unreasonable for the plaintiff to reject the offer and proceed to trial.  In reaching this decision Madam Justice Baker provided the following reasons:

[13]         While in hindsight the Defendant’s Offer was indeed reasonable, that is not the test.  Rule  9-1(5) and 9-1(6) were not intended, in my view, to punish parties merely because the party’s assessment of the value of the claim proves incorrect, unless that assessment was based on irrelevant considerations; a clearly inadequate review of the available evidence and applicable authorities, or was, in view of the facts known at the time, unreasonable.

[14]         Here, the parties differed, as did some of the expert witnesses, about the Plaintiff’s prognosis; and the extent to which the injuries resulting from the accident, would affect his capacity to earn income in future.  While the Plaintiff did not succeed on this issue, I cannot say it was unreasonable for him to pursue the claim; or to believe that there was some prospect of success, even if there was a risk he would not succeed.  I note also the Plaintiff’s submission, which I consider persuasive, that even a slightly higher award for special costs or non-pecuniary damages would have resulted in an awarded that exceeded the Defendant’s Offer.

[15]         Having weighed the relevant factors, I am satisfied that this is a case in which I should award the Plaintiff the costs of the entire action, including all steps taken after the date of delivery of the Defendant’s offer, notwithstanding the Defendant’s Offer.

$3 Million "Diminished Capacity" Award For Brain Injured Teen Who Planned on Being Engineer

Written by admin on . Posted in ICBC Brain Injury Cases, Uncategorized.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages of $3 million dollars for a Plaintiff who sustained a brain injury in a vehicle collision.
In today’s case (Grassick v. Swansburg) the Plaintiff, who was 16 at the time, was a pedestrian and struck by a vehicle driven by the Defendant.  The Plaintiff suffered a moderate to severe brain injury which impacted his cognition and was expected to have permanent repercussions.
The Court found that the Plaintiff was an ambitious and hard working young man who, but for the brain injury, would have had a successful career in his anticipated profession as a civil engineer.  In assessing damages of $3 million for diminished earning capacity Madam Justice Loo provided the following reasons:
[197]     I do not accept the defendant’s argument that Stirling’s part-time employment as a server in a retirement home and his work during his co-op placements demonstrate that he has an ability to do well in the workplace. Quite the opposite. His work at Maple Reinders is a forecast of the difficulties he will have with maintaining employment.

[198]     While Stirling suffers only mild cognitive impairments, they are potent for him. His cognitive impairments directly impact his drive to excel. Perhaps if he was content to be less than average at everything he does, it would not matter so much. But he was not, and is not content to be being average.

[199]     Predicting what his future earning capacity would have been, but for the accident, is a complex task and the potential range of his earnings is broad. The plaintiff relies on the expert report of Darren W. Benning, economist, for the estimated lump sum present value of lifetime earnings of a British Columbia male civil engineer. The defendant did not require Mr. Benning to attend for cross-examination.

[200]     There is a range of possibilities for Stirling; from being, for lack of a better term, an average or 50th percentile engineer earning from May 1, 2016 when he is expected to graduate, through to age 65. Based on the present value of life-time earnings, $2,399,956. However, that figure – as do all of the figures provided by Mr. Benning – includes 24.2 percent reduction for the average labour market contingencies: unemployment, part-time work and part-year work. Without those contingencies, the figure for the 50th percentile engineer is $3,166,172.

[201]     Mr. Benning has also provided figures for engineering managers. With the labour market contingencies, the figures are $3,149,822 for the average engineering manager, and $3,868,882, and $4,880,954 for the 80th and 90th percentiles, respectively. Without the labour contingencies, the figures are $4,155,437, $5,104,065 and $6,439,253.

[202]     I conclude that there is a real and substantial possibility that Stirling would have worked for a number of years as an “average” engineer, before moving up the ranks of engineers. He would have worked full time, and his professional career would be an important part of his life.  He would have succeeded in becoming one of the higher paid engineers, a well above average engineer, or an upper management engineer.

[203]     Stirling may, like many professionals, work past the age of 65. On the other hand, he may, like other professionals, decide to retire early and do other things. However, given Stirling before the accident, and now, I do not think he is the kind of person who would choose to work part year or part time.

[204]     The plaintiff seeks damages for loss earning capacity in the sum of $3 million. I find this sum to be both reasonable to him and to the defendant. I award $3 million for loss of future earning capacity.

No Medical Report Thwarts Request for Second Defence Medical Exam

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, rejecting a defense application for a defense medical exam where they had not provided a report following an initial exam.
In today’s case (Thandi v. Higuchi) the Plaintiff agreed to be assessed by an orthopedic surgeon selected by the Defendant.  No report was produced following this assessment and the Defendant requested a further a exam with a neurologist.  In dismissing the application the Court noted that the lack of a report left the court without a proper evidentiary foundation respecting the equality of the playing field.  Master Harper provided the following reasons:

[6]             The major impediment to the defendant’s application in this case is the absence of Dr. Loomer’s report. It might be the case that the defendant could establish the necessity for a third independent medical examination before a neurologist, but the Court does not have sufficient evidence to assess that issue. Here, I rely on Koulechov v. Dunstan, 2015 BCSC 393 at para. 6, which is on all fours with this application:

[6]        It is counsel’s prerogative, of course, to control the timing of disclosure in a civil case. However, an order for a second independent medical examination under Rule 7-6 is a discretionary remedy that will only go if it is required to put the parties on an equal footing with respect to medical evidence: Stainer v. Plaza, 2001 BCCA 133 at para. 8. In the present application, in the absence of Dr. Gittens’ report, it is impossible for me to evaluate if there is any inequality in evidence or if an orthopaedic IME could redress it. …

[7]             Applying the Koulechov decision to the present application, I am not in a position to assess whether the medical complaints that involve neurological complaints were addressed by Dr. Loomer, could have been addressed by Dr. Loomer, or whether Dr. Loomer declined to opine on any neurological complaints because it was outside his area of expertise.

[8]             So quite simply, the defendant has not met the evidentiary burden necessary to justify the order sought and, therefore, I dismiss the application.

$140,000 Non-Pecuniary Assessment for Chronic Dizziness and Imbalance

Written by admin on . Posted in ICBC Dizziness Cases.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for symptoms of chronic dizziness and imbalance following a vehicle collision.
In today’s case (Kijowski v. Scott) the Plaintiff was involved in a 2011 collision caused  by the Defendant.  The Plaintiff suffered various soft tissue injuries and also suffered from chronic dizziness and imbalance issues.  These were expected to be permanent.  In assessing non-pecuniary damages at $140,000 Mr. Justice Greyell provided the following reasons:

[128]     In my view Mr. Kijowski’s injuries are considerably more significant that those sustained by the plaintiffs in the cases referred to by the defendants. As a result of his injuries, Mr. Kijowski’s life has been significantly altered in many respects: recreationally, at work, and at home. He can no longer enjoy the activities he did in the past and the prognosis for his improvement is guarded. Dr. Longridge has opined Mr. Kijowski’s dizziness and imbalance will be permanent impairments and he will have to continue with vestibular therapy indefinitely to improve his ability to function with these conditions or he will likely relapse. As he ages, he will more prone to falling and injuring himself. He has a hearing deficit as a result of damage to the cochlea which likely can be improved with binaural amplification (hearing aids). Mr. Kijowski continues to suffer from soft tissue injuries to his neck, mid and lower back which will likely improve over time with treatment. His tinnitus and hearing deficit have resulted in stress in his relationships at home. His ability to concentrate and his energy is decreased and he worries about the security of his job and the consequences that would have on his family.

[129]     After considering all the factors set out in Stapley I am of the view the appropriate amount of non-pecuniary damages is $140,000.

"Late" Formal Offer Beat by 9% Triggers Double Costs

Written by admin on . Posted in BC Supreme Court Costs Cases, BCSC Civil Rule 9.

Reasons for judgment were released today by the BC Supreme Court, Vancouver Registry, finding a formal offer that was bested by 9% and was delivered a few days prior to trial was capable of triggering double costs.
In today’s case (Kostinuk v. Fellowes) the Plaintiff was involved in a personal injury prosecution and issued a formal offer to settle his claim, three days before trial, for $175,000.  After a 6 day trial judgement of $192,345 was obtained.
The Defendant argued, among other things, that no post offer double costs should be awarded as the offer was issued too late.  In rejecting this argument and awarding double costs Madam Justice Brown provided the following reasons:

[10]         Reasonableness is to be assessed by considering such factors as the timing of the offer, whether it had some relationship to the claim (as opposed to being simply a nuisance offer) and whether it could be easily evaluated and whether some rationale for the offer was provided (Hartshorne v. Hartshorne, 2011 BCCA 29 at para.27). Here, although the offer was delivered on the Friday before the commencement of trial, there was an adequate period of time within which to evaluate the offer. As the plaintiff submits, by that point in time all of the evidence was available to the party. They had exchanged earlier offers. Discoveries were complete, expert opinions available. The defence would have been well able to assess the offer in the time available to it. Moreover, the plaintiff had provided an explanation that followed the offer within a few hours. The offer was within the range of likely outcomes. In the circumstances, the defendant would be able to assess the reasonableness of the offer and make a decision on it.

[11]         The judgment was $192,354.05 (including gross wage loss) as such, the offer is just slightly below the amount awarded by the court.

[12]         I do not have information as to the arrangements between the plaintiff and his counsel. Accordingly, I cannot assess the relative positions of the parties and their ability to finance the trial.

[13]         The other factor which I consider appropriate in this particular case is that the defence was conducted by the insurer who was well able to assess the risks of proceeding to trial. The insurer did so knowing that it could be exposed to an award of double costs should Mr. Kostinuk succeed.

[14]         In my view, having considered all of the factors, it is appropriate that the defendant pay the plaintiff costs at Scale B for the steps taken up to and including the date the plaintiff served the formal offer to settle with double costs thereafter, excluding disbursements which will be at the normal rate.

Previous Discovery Transcripts, Expert Reports and Mediation Documents Ordered Produced in Indivisible Injury Case

Written by admin on . Posted in BCSC Civil Rule 7.

Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, ordering broad document production from past litigation in a case of potential indivisible injuries.
In today’s case (Easton v. Chen) the Plaintiff was injured in a 2011 collision and sued for damages.  The Plaintiff was also involved in four prior collisions that resulted in injury claims, all of which settled prior to trial.
The Defendant requested production of past examination for discovery transcripts, expert reports and mediation documents on the basis that the injuries may be indivisible.  In ordering production Master Muir provided the following reasons:

[25]         I agree with the submissions of the defendant. I am satisfied that the prior documents, the discovery transcripts and the experts reports from the prior actions could be used to prove or disprove material facts in this action and on that basis alone I would order their production. I also conclude that in any event a sufficient foundation has been laid for their production under Rule 7-1(11). Further, I conclude that it is in the interests of justice to relieve against the implied undertaking of confidentiality. Thus, the documents are to be disclosed.

[26]         The mediation documents sought raise another issue and that is settlement privilege. The defendant relies on Dholliwar v. Yu, 2015 BCSC 670 and Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada, 2005 BCCA 4, for the proposition that the disclosure of these documents is necessary in order to prove what the plaintiff received in compensation in the prior accidents and to prevent injustice through potential double compensation.

[27]         In Dholliwar, Master Scarth held:

[26]      It has yet to be established here that the injuries arising from the third accident are indivisible from those in the first and second. However, on the basis that indivisibility is at issue, and that there is potential for over-compensation, it is appropriate to require disclosure of the settlement documents at this time. I accept the submission of the defendants that such disclosure is necessary, in that it may assist in the settlement of the plaintiff’s claims arising from the third accident. Disclosure at this time is consistent with the previous decisions of this Court in Pete and Murray. I am satisfied that the defendants here do not seek a purely tactical advantage, as the Court found in Phillips v. Stratton, 2007 BCSC 1298 (CanLII), but rather, they wish to have the information necessary to assess their exposure, both for purposes of settlement and in the preparation of their case for trial.

[27]      In Dos Santos at para. 34, the Court stated that “significant weight should be given to the just disposition of pending litigation in determining whether the documents sought come within an exception to settlement privilege.” In my view, to find that the documents should be disclosed at this time is consistent with this approach

[28]         Similarly in this case, indivisibility is an issue and the defendants argue there is a potential for double compensation. The only evidence available showing what the plaintiff was compensated for in the prior actions will be found in this documentation. As a result, I conclude that the mediation documents should be disclosed.

Expert Who "Did Not Meet With, Examine Or Interview" Plaintiff Given Zero Weight

Written by admin on . Posted in Uncategorized.

In the latest case  (Preston v. Kontzamanis) of courts having critical comments for medico-legal practices, reasons for judgement were released today by the BC Supreme Court, Quesnel Registry, rejecting the opinion of a defence retained doctor who “did not meet with, examine or interview” the Plaintiff but nonetheless authored a report opining on the Plaintiff’s injuries.
In criticizing this practice Mr. Justice Parrett provided the following comments:

[125]      The defendant provided and relied upon what purported to be an independent medical report (IME) by Dr. Boyle.

[126]     Dr. Boyle readily acknowledged that he was not asked to and did not meet with, examine or interview the plaintiff.

[127]     Dr. Boyle reviewed documents and information provided by counsel and wrote his report.

[128]     These documents and that information included clinical records of various medical professionals.

[129]     This is a process that is unlikely to assist the court in any material way.  The first concession is invariably, and was in this case, that interviewing, examining and getting a personal history is important to providing an accurate and complete assessment.

[130]     This is a trend that appears to have been of relatively recent origin.

[131]     It is also a trend which has drawn adverse comment from judges of this court.  Dhaliwal v. Bassi 2007 B.C.S.C. 549 (Burnyeat, J. at paras. 2-3); Ruscheinski v. Biln 2011 B.C.S.C. 1263 (Walker, J. at paras. 85-87);Rizotti v. Doe 2012 B.C.S.C. 1330 (Tindale, J. at para. 35).

[132]     To these I would add my own comments.  Where an expert chooses to prepare a report as he did here, expecting this court to accept and rely on it.  He is presenting a report in which he effectively asserts that he accepts as true and accurate the factual base on which his opinions are based.

[133]     Where he does so without seeing, examining or taking a personal history he chooses to offer his opinion on the basis of hearsay.  Worse still he chooses to offer it on the basis of his interpretation of hearsay recorded by others.

[134]     Another difficulty presents itself with respect to the report and evidence of Dr. Boyle and the report of Dr. Hawk.

[135]     The clinical records and other documents were admitted under the terms of a document agreement which was entered as Exhibit #1.

[136]     Under the terms of that agreement the use of documents in general, which includes clinical records, is limited.  Paragraph 2 and 5 of that document are particularly notable.

[137]     In my view, Dr. Boyle’s report should be afforded the weight it deserves and in this case where credibility and exaggeration are both asserted against the plaintiff by the defendant that is no weight at all.

[138]     It was not argued in this case that the report was inadmissible and Dr. Boyle’s qualifications to give an expert opinion on this case and in these circumstances was not addressed. I leave it then to another day and for full argument for this court to consider whether the requirements are met to allow the report to be received at all in these circumstances.