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Privileged Report Detrimental To Plaintiff's Claim Declared Reasonable Disbursement

Written by admin on . Posted in Uncategorized.

Just because a medico-legal report proves harmful to a Plaintiff’s claim does not make the costs of obtaining the report, in and of itself, an unreasonable disbursement.  Reasons for judgment were released last week by the BC Supreme Court, Prince George Registry, demonstrating this.
In last week’s case (White v. Reich) the Plaintiff was injured in a 2008 collision.  He sustained a chronic knee injury which impacted his ability to work.  The Plaintiff had a history series of heart problems which also impacted his choice of working in remote locations.   His treating cardiologist did not wish to be involved in litigation and the Plaintiff retained an independent physician to address this issue.  Ultimately the independent physician provided an opinion which was detrimental to the Plaintiff’s litigation interests indicating “that the heart condition was in no way related to the motor vehicle accident and that in any event, if the plaintiff were to follow a regime of rehabilitation and medication he could seriously reduce the risk of further heart problems.  In short, the evidence established that with proper actions, there was no physical reason for the plaintiff not to return to his Northern Alberta position.”
The Plaintiff claimed privilege over this report and it was not exchanged with defence counsel.  The matter settled prior to trial.   The Defendant argued the disbursement associated with this report was unreasonable.  Master Caldwell disagreed finding simply because the report was ultimately unhelpful to the Plaintiff’s claim the decision to explore the issue was reasonable.  In allowing the disbursement the Court provided the following reasons:
[19]         The applicable legal principles were canvassed and summarized recently by Master MacNaughton in Turner v. Whittaker, 2013 BCSC 712 at para. 5.  In particular it is noted that the test is not one of hindsight and that a proper disbursement may be one which is ultimately not necessary but which was reasonably incurred for the purposes of the proceeding.
[20]         In this regard, counsel for the defendant acknowledged that if the report had determined that the most recent heart problems had been caused by or contributed to by the accident and that that was the cause of the plaintiff’s being unable to return to work, there would be no question that the report was not only reasonable and proper but in fact necessary to the proper conduct of the litigation.
[21]         In all of the circumstances, I am of the view that the course of investigation with Dr. Isserow, which culminated in and included his report, was reasonable and proper at the time that it was undertaken and accordingly the disbursements which relate to Dr. Isserow are allowed as presented.

Pending Appeal No Reason For Trial Judge Not To Finalize Costs

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

Short and to the point reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, awarding a plaintiff double costs after proceeding to trial and besting a pre-trial settlement offer.
In the recent case (Codling v. Sosnowsky) the Plaintiff was injured in a motor vehicle collision.  Prior to trial she made a formal settlement offer for $55,000.   ICBC rejected this and proceeded to trial where she was awarded just over $70,000.  The Court awarded the Plaintiff double costs for besting the offer.  ICBC argued that it was premature to settle costs as the case was under appeal.  Mr. Justice Smith quickly disposed of this argument providing the following reasons:
[3]             The defendant also says it is premature to deal with costs because he has filed an appeal and even partial success could reduce the award to an amount below the offer to settle. I do not accept that argument. The duty of this court is to finalize its own judgment. If the Court of Appeal finds that judgment to be in error, the costs consequences will change accordingly.
In confirming that this was an appropriate case for double costs Mr. Justice Smith reasoned as follows:
[7]             On the basis of the evidence that the parties could reasonably have anticipated being called at trial, I find that the plaintiff’s offer represented a reasonable effort to assess her possible recovery. It was one the defendant should have recognized as being within the range of possible awards and ought reasonably to have been accepted, particularly when weighed against the cost of going to trial. I recognize that liability was denied and the plaintiff’s offer made no apparent discount for risk on that issue, but this was a rear-end collision and the defendant had little prospect of success on liability or contributory negligence.

$60,000 Non-Pecuniary Assessment for Chronic Shoulder Injury With Favourable Prognosis

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

Adding to this site’s database of cases dealing with ICBC shoulder injury cases, reasons for judgement were released this week by the BC Supreme Court, Campbell River Registry, addressing such an injury.
In this week’s case (Proctor-McLeod v. Clarke) the Plaintiff was injured in a 2008 rear end collision.  The 51 year old plaintiff suffered a variety of soft tissue injury including a chronic shoulder injury which continued to pose problems at the time of trial.  Despite the chronic nature of her symptoms the ultimate prognosis was a favourable recovery.  In assessing non-pecuniary damages at $60,000 Mr. Justice Armstrong provided the following reasons:
[67]         The onset of the plaintiff’s shoulder symptoms was brought on by the defendant’s negligence. The medical opinions suggest that these symptoms may have never appeared if the plaintiff was not injured in the accident. Dr. Hawkins did not explain to my satisfaction why he believed that the shoulder pain would have become symptomatic if the plaintiff had not been injured. In my view, the accident was part of the cause of the plaintiff’s ongoing complaints. Common sense dictates that there is a causal connection due to the uninterrupted continuation of these symptoms, albeit on an intermittent basis.
[68]         I accept Dr. Hawkins’ opinion that further treatments might result in a resolution of her shoulder symptoms and that her soft tissues have improved significantly. The plaintiff has been suffering from the after effects of the calcium deposits and friction in the coracoacromial arch in her shoulder. The plaintiff’s continued pain from flare ups would not have happened but for the accident. Although she made a good recovery from her other injuries, there is persisting pain developing intermittently in her neck and radiating to her left arm. This causes her pain levels to rise from a daily level of three out ten to six or seven out of ten. These estimates are of limited use; however they do give a subjective measure of the plaintiff’s perception of her condition during flare ups of symptoms.
[69]         I conclude that the plaintiff’s symptoms will likely resolve over time….
[93]         … I have assessed the plaintiff’s loss at $60,000 for non-pecuniary damages.

$75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

Written by admin on . Posted in ICBC Spine Injury Cases. 61 Comments on $75,000 Non-Pecuniary Assessment for Low Back Disc Protrusions With Chronic Symptoms

Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, assessing damages for a chronic low back injury caused as a result of a motor vehicle collision.
In this week’s case (Roy v. Storvick) the Plaintiff was involved in a 2009 T-bone collision.  The Defendant admitted fault “just before the trial commenced“.  The Plaintiff, a 27 year old carpenter at the time of the crash, suffered various injuries the most serious of which involved disc injuries in his low back.  He was expected to have long term issues associated with these affecting his vocational abilities.  In assessing non-pecuniary damages at $75,000 Madam Justice Gropper made the following findings and provided the following reasons:
[50]         With respect to Mr. Roy’s lumbar spine, Dr. Murray comments:
As a direct result of [this motor vehicle accident], this 30-year-old carpenter sustained myofascial injuries to his cervical spine and a severe injury to his lumbar region where both clinically and radiologically he has evidence of lower lumbar disc protrusions principally at the L3/L4 level where there was an associated annular tear and also at the L4/L5 level where there was a moderate midline focal disc protrusion.
[51]         Dr. Murray says that lumbar disc protrusions usually run a protracted course of recovery: a three year duration is not unusual. He expects that Mr. Roy will eventually become pain free.
[52]         In regard to Mr. Roy’s tear of the annulus fibrosus at the L3/L4 level, it can never heal as it does not have a blood supply. Dr. Murray considers that Mr. Roy will always be at risk for further episodes of lumbar disc protrusion pain. Dr. Murray continues:
… he will not be able to continue with his career as a carpenter and will need to be retrained for a less physically demanding alternate occupation. It may be difficult to find such an occupation for this man as he is very much “the sporting type”, who prior to the [motor vehicle accident] three years ago attended the gym six times a week and also played soccer twice a week….
[105]     At the time of the injury, Mr. Roy enjoyed an active lifestyle. He was engaged in work as a carpenter and participated regularly and enthusiastically in many sporting activities. While he is able to continue his employment, the remaining aspects of his physical activities have come to an end. In reconciling the prognosis of Drs. Craig and Murray, I consider that Dr. Craig has an unduly optimistic view of Mr. Roy’s prospective recovery. I note that Dr. Craig had a more limited opportunity to observe Mr. Roy. He was also apparently unclear on the degree to which Mr. Roy was engaging in exercise.
[106]     I further note that Dr. Craig dismissed Dr. Murray’s treatment of Mr. Roy and recommended that Mr. Roy be assessed by a kinesiologist. Mr. Roy was assessed by Mr. Hunt, a kinesiologist, who put him through testing and concluded that Mr. Roy’s functioning is compromised and that he will likely have increased rather than reduced pain.
[107]     I find that Dr. Murray’s prognosis is more accurate and that his opinion Mr. Roy suffered a severe injury to his lumbar spine and a moderate to severe injury to his cervical spine is accurate. While Dr. Murray suggests that there may be some improvement, Mr. Roy is at risk of re-injury. He will also suffer from continuing pain and discomfort….
[109]     Having reviewed the cases provided by both parties, I assess Mr. Roy’s non-pecuniary damages at $75,000.

The Dry Judgement Blues – Knowledge of lack of Registered Owner Consent

Written by admin on . Posted in Uncategorized. 56 Comments on The Dry Judgement Blues – Knowledge of lack of Registered Owner Consent

Knowingly riding in a vehicle involved in a collision where the at fault driver does not have the owner’s consent can lead to legal headaches when it comes to being compensated for injuries.  Reasons for judgement were released this week by the BC Supreme Court, Kamloops Registry, dealing with such a potential scenario.
In this week’s case (Schoenhalz v. Reeves) the Plaintiff was badly injured while riding as a passenger in a vehicle involved in a 2007 collision.  The Plaintiff suffered spinal fractures, various burns to her body, dental injuries and a pelvic fracture.  Damages of $282,992 were assessed.
The driver of the vehicle was found to be at fault.  The Court found, however, that the driver of the vehicle was not operating it with either the express or implied consent of the owner.  Accordingly the lawsuit against the vehicle owner was dismissed.    The driver was 15 years of age at the time and did not have a license.  The Court concluded that “at the time of the accident (the Plaintiff) knew that (the driver) was age 15 and did not have a driver’s license.”.
Why does this matter?  While this judgement did not get into collections issues such a finding could be problematic.
Typically a 15 year old uninsured motorist would have no means to satisfy a quarter million dollar judgement.  This leaves the issue of insurance.  In ‘no consent‘ situations ICBC treats the collision as uninsured leaving an injured plaintiff with only the ability to collect damages under either section 20 of the Insurance (Vehicle) Act or under their own Underinsured Motorist Protection plan (UMP).
While the above insurace plans often are valuable in satisfying an uninsured judgement, there are exceptions as to who can access these.  One such exclusion deals with knowingly being in a vehicle without driver consent.  A Plaintiff cannot access section 20 uninsured motorist funds if they “at the time of the accident as a result of which the bodily injury, death or loss of or damage to property was suffered, was an operator of, or a passenger in or on, a vehicle that the person knew or ought to have known was being operated without the consent of the owner, and, in the case of a leased motor vehicle, the lessee.”
A similar exclusion exists if a Plaintiff seeks to access their own UMP coverage.  Section 148(4)(c) of the Insurance (Vehicle) Regulation lets ICBC off the hook in circumstances where the Plaintiff ” is an operator of, or a passenger in or on, a vehicle that the insured knew or ought to have known was being operated without the consent of the owner.”
When seeking to collect the judgement from ICBC such a judicial finding may cause ICBC to deny payment on the basis that a person “ought to know” that an owner likely is not providing consent to an unlicensed individual operating the vehicle.  This area of law has received scarce judicial commentary but these coverage exclusions should serve as a stark reminder to individuals considering taking a ride with an unlicensed driver.
 

$85,000 Assessment for Permanent, Partially Disabling Soft Tissue Injuries

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

Adding to this site’s archived caselaw addressing soft tissue injuries, reasons for judgement were released last week by the BC Supreme Court, Nanaimo Registry, assessing damages for such an injury with permanently partially disabling consequences.
In last week’s case (Stull v. Cunningham) the Plaintiff was involved in a 2009 collision.   Fault was admitted by the Defendant.  The collision was significant and the Plaintiff caused soft tissue injuries to the Plaintiff’s back and neck.  These continued to be symptomatic by the time of trial and were expected to continue in the future.  The Plaintiff worked as a tradesman and the injuries interfered with his physical abilities at work.  In assessing non-pecuniary damages at $85,000 Mr. Justice MacKenzie provided the following reasons:
[91]         Having regard to the totality of the circumstances, I accept the evidence of the plaintiff that he still suffers reasonably moderate neck and back injuries and that this has affected, to a certain degree, his ability to do the same type of work around the house that he once enjoyed, that it has affected his recreational activities to a modest extent, and most significantly, his ability to perform at full capacity in his chosen occupation.
[92]         I accept that Mr. Stull is permanently partially disabled because of the injuries incurred in this accident and that his pain is constant and relatively significant. I find that the injuries he suffered in the accident have prevented him from doing all of the installation work he used to be able to do throughout his full work day.
[93]         I also accept the evidence of both Mr. and Mrs. Stull that the financial impact of the motor vehicle accident caused significant stress and disharmony in their marriage.
[94]         I also agree with counsel for the plaintiff that, by their very nature soft tissue injuries are not always manifested by objective signs. Complaints of soft tissue pain and headaches are subjective in nature. I do note, however, that Dr. Martin saw Mr. Stull in late May 2012 and noted “a mild decreased range of motion.” I accept Mr. Stull’s evidence with respect to the ongoing significance of these symptoms and find that they were caused by the accident and are not a result of normal wear and tear on a back that had been traumatized many years before.
[95]         Given the totality of the circumstances, I am satisfied a fair and reasonable assessment of non-pecuniary damages would be $85,000.

Bus Driver Liable For Accelerating Prior To Elderly Passenger Being Seated

Written by admin on . Posted in ICBC Femur Injury Cases, ICBC Hip Injury Cases, ICBC Liability (fault) Cases.

Adding to this site’s archives addressing bus driver liability for injuries to passengers, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, dealing with such an incident.
In this week’s case (Wong v. South Coast British Columbia Transportation Authority) the 81 year old plaintiff boarded a bus and was on her way to her seat when “the driver pulled into traffic in an abrupt motion“.    The Plaintiff fell and the driver then “abruptly braked“.  The Plaintiff’s hip was fractured in the incident.
Madam Justice Power found the bus driver was negligent in failing to wait until the elderly plaintiff was seated before accelerating.  In finding the driver partly liable for the incident the Court provided the following reasons:
[25]         In cross-examination, Mr. Pinnell conceded that “it was surprising” that Ms. Wong fell one foot from the fare box and that in the time prior to the fall, he never saw anyone coming down the aisle.  He acknowledged that if he had seen Ms. Wong, he would have told her to sit down.  He agreed that there is a policy and procedures manual for bus drivers and that there is a policy to allow elderly people a chance to sit before moving from a stopped location.  He acknowledged that at examination for discovery he did not think such a policy was in place…
[40]         In all of the circumstances of the case at bar, I am of the view that Mr. Pinnell breached the standard of care of a reasonably prudent bus driver by entering traffic without warning Ms. Wong that he was about to enter traffic and without doing an adequate visual check to ensure that Ms. Wong had returned to her seat or was securely standing.  In so doing he was also in breach of the Operators Policy and Procedures Manual, para 6.11.
The Plaintiff’s fractured hip required surgical intervention.  Despite having an ‘uneventful’ recovery she was left with permanent restrictions in mobility.   The Court went on -to assess non-pecuniary damages at $90,000 before slightly reducing these for contributory negligence.

Why Global Settlement Offers Are OK in BC Wrongful Death Lawsuits

Written by admin on . Posted in Settlement Law.

Interesting reasons for judgement were released this week by the BC Supreme Court, Vernon Registry, addressing the propriety of a global settlement in a wrongful death lawsuit involving children as beneficiaries.
In the recent case (Gaida v. McLeod) the Plaintiff Brenda Leah died “as a result of methotrexate toxicity and that the medication was mistakenly given to her daily, rather than weekly“.  The Defendants admitted liability in causing the wrongful death.   In the course of the lawsuit the Defendants and the estate of the Plaintiff reached a global settlement.   A disagreement arose and leading to a Defendant application to declare that a binding settlement took place.
The Plaintiff opposed this arguing that “ the failure to allocate specific amounts of the settlement money to the two minor children renders the proposed settlement too uncertain and vague to be enforceable.”  Mr. Justice Pearlman rejected this argument and provided the following reasons explaining why a global settlement can survive scrutiny:
[60]         In British Columbia, the court must approve the amount to be paid in settlement of an infant’s claim before the settlement of a claim under the FCA may be implemented.  The court may approve payment to an infant in an amount different from that proposed by the parties or recommended by the Public Trustee and Guardian.  The court may increase the amount to be paid in settlement of an infant’s claim beyond that proposed by the parties, and may do so at the expense of an adult claimant…
[67]         Any amounts which the parties propose to allocate to the heads of damages applicable to minor claimants, including loss of care, guidance and companionship, and loss of inheritance, are proposals only, subject to the court’s approval.  Ultimately, the court must determine the amount to be allocated to each minor claimant, which may require the reapportionment of allocations proposed by the parties within the global settlement amount.  While the global amount of settlement will not change, there can be no certainty respecting the parties’ allocation of specific amounts to each of the claimants, because the court has the exclusive jurisdiction to determine the allocation of settlement monies to the minor claimants.
[68]         Under s. 3(6) of the FCA, a defendant may make a single payment into court, in satisfaction of all claims, without specifying how that amount is to be allocated among the claimants.  There is no requirement under the FCA that a defendant making a payment into court must specify the amounts to be paid out to minor claimants.  In cases where the payment into court is accepted by the plaintiff, if the claim involves infant claimants the court must still approve the distribution of settlement monies to the minor claimants.
[69]         I conclude that the allocation of specific amounts to minor claimants, which is always subject to the court’s approval, and may vary from the amount proposed by the parties, is not an essential term for the formation of an enforceable settlement agreement.

Insufficient Reasons Lead To Retrial Of Diminished Earning Capacity Award

Written by admin on . Posted in ICBC Wage Loss, Uncategorized.

Update May 27, 2014 – After reassessment the trial judge assessed damages at the original amount
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Reasons for judgement were released last week by the BC Court of Appeal sending a case for re-trial after a judge failed to adequately explain how substantial damages for diminished earning capacity were assessed.
In the recent case (Morgan v. Galbraith) the Plaintiff was injured in a 2006 collision. He worked as a senior account manager at the Royal Bank of Canada at the time.  Following the crash he returned to this job with accommodation until his contract expired.  From there he never returned to work at the bank instead he pursued a career in professional lacrosse.  This chapter of his life ended with a concussion suffered in 2011.  By the time of trial he was working as a basketball and lacrosse coach.
At trial it was found that the Plaintiff suffered from ongoing injuries from the collision.  His diminished earning capacity was assessed at $700,000.  The BC Court of Appeal found that the reasons supporting such an assessment were lacking from the trial judgement and the matter was sent back to trial for reassessment of this loss.  In doing so the BC Court of Appeal provided the following reasons:
[54]         The economic evidence relied on by Mr. Morgan quantified lifetime earnings of a sport coach in Oregon at $883,004.  The judge did not explain the basis of his $700,000 assessment.  This amount approximates 80% of lifetime earnings of a coach, notwithstanding that Mr. Morgan is now employed as a coach.  I do not mean to imply that the assessment must be a mathematical calculation.  Rather, my point is that there must be findings of fact on which to base the assessment.  Here, the reasons for judgment on this point are not sufficient to permit appellate review.  The judge gave no hint as to the factual basis on which he reached the conclusion that on these facts $700,000 was an appropriate measure of Mr. Morgan’s future damages.  The judge did compare this case to another similar case, but, in my view, that would not be an appropriate way to assess what is essentially a pecuniary damage award.  I do not consider that it is appropriate for this Court to infer from the judge’s reasons the necessary findings of fact in order to substitute a different award or to affirm the correctness of the award. 
[55]         The judge could well have chosen the earnings approach given that Mr. Morgan was likely to pursue a career in sport regardless of the accident and that doing so after the accident was possible but with limitations.  The judge made no findings concerning the extent of those limitations.  As I have concluded that the appropriate disposition of this appeal is to remit the question of the assessment of damages for future loss of earning capacity to the judge, I will leave to the trial judge the question of the appropriate approach to adopt.  To reiterate, I agree with Mr. Morgan that on a proper evidentiary basis the judge has already found that there is a loss of future earning capacity under the Perren test.  He need not reconsider that finding.  But it will be necessary for him to revisit the assessment on a proper factual underpinning.
[56]         If the assessment is still to be based on the capital asset approach the judge must consider the four questions in Brown in the context of the facts of this case and make findings of fact as to the nature and extent of the plaintiff’s loss of capacity and how that loss may impact the plaintiff’s ability to earn income.  Adopting the capital asset approach does not mean that the assessment is entirely at large without the necessity to explain the factual basis of the award: Morris v. Rose Estate (1996), 23 B.C.L.R. (3d) 256 at para. 24, 75 B.C.A.C. 263; Mulholland (Guardian ad litem of) v. Riley Estate (1995), 12 B.C.L.R. (3d) 248 at para. 43, 63 B.C.A.C. 145.
[57]         In conclusion, on this ground of appeal, I would remit the question of the quantification of future loss of earning capacity to the trial judge to reassess damages in accordance with these reasons.

$130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Written by admin on . Posted in ICBC Chronic Pain Cases, ICBC Fibromyalgia Cases, Uncategorized. 57 Comments on $130,000 Non Pecuniary Assessment for Chronic Fibromyalgia

Adding to this site’s archived ICBC fibromyalgia cases, reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry dealing with such an injury.
In last week’s case (SR v. Trasolini) the Plaintiff was involved in a 2007 rear end collision.  Fault was admitted by the Defendant.  Although causation was vigorously contested, the Court conclude the collision caused a fibromyalgia condition which left the plaintiff partially disabled with chronic symptoms.  In assessing non-pecuniary damages at $130,000 Madam Justice Ballance provided the following reasons:
[169]      The injuries sustained by Ms. R. have caused her years of suffering, fluctuating degrees of chronic pain all over her body that is sometimes quite severe, and the concomitant diminution of joy and pleasure to most aspects of her life.  Although her symptoms have gradually improved, particularly in the year or so leading up to trial, they remain sufficiently significant to continue to meet the diagnosis of fibromyalgia.  The expert opinion evidence that I accept is skeptical that Ms. R. will ever fully recover to her former self despite her completion of the Pain Program, commitment to physiotherapy and other treatment modalities and reasonable exercise when she is able.
[170]     A formerly outgoing, sociable and highly energized and engaged woman, Ms. R. is now more reclusive and has had to lean heavily on her aging mother to perform her share of household chores and, for about a six-month period, to assume most of her personal grooming.  She worries about her future, including how she will be able to care for her elderly mother in the passing years.
[171]     The Accident has left Ms. R. to confront the grim reality that she has an incurable and complex syndrome that manifests as chronic pain and an array of other unwelcome physical, psychological and cognitive impairments.  For years to come, possibly indefinitely, she will be vulnerable to episodic aggravation of her physical symptoms, which in turn, will disrupt her sleep and produce an adverse effect on her overall emotional and cognitive well-being.  The person she was before the Accident has been forever altered.
[172]     While the toll taken on Ms. R. by the ill-effects of the Accident have been life- altering domestically, emotionally, recreationally, socially and vocationally, the most deleterious consequence for her is that it has limited her ability to fully realize her most passionate of life’s goals, namely to serve her faith.
[173]     I have reviewed all of the cases placed before me by counsel.  I do not propose to review them in detail as they provide general guidelines only, other than to say that only one of the authorities relied on by the defendants involved a plaintiff afflicted with fibromyalgia or a chronic pain syndrome.  Ms. R.’s authorities are far more instructive in light of their factual similarities to her circumstances; even still, they are not determinative.
[174]     Having considered the evidence as a whole and the application of the governing principles, it is my opinion that a fair and reasonable award for Ms. R.’s non-pecuniary damages is $130,000.