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Boundaries of Lay Opinion Evidence Discussed by BC Supreme Court

Written by admin on . Posted in Civil Procedure.

Generally opinion evidence is only admissible at trial by a duly qualified expert.  One exception to this rule relates to lay witnesses being able to provide a Court with opinions in limited circumstance.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this exeption.
In this week’s case (American Creek Resources Ltd. v. Teuton Resources Corp.) the litigants were involved in a commercial dispute.  In the course of trial  the President of the Defendant company wished to provide the Court with certain opinions.  In addressing this Mr. Justice Grauer provided the following summary of the boundaries of lay opinion evidence:
[14]         Generally, opinion evidence is inadmissible unless it is expert evidence.  There are exceptions.  Lay opinion evidence may be admissible under circumstances discussed at length in Part II of Chapter 12 in The Law of Evidence in Canada, where the learned authors state at paragraph 12.14:
Courts now have greater freedom to receive lay witnesses’ opinions if: (1) the witness has personal knowledge of observed facts; (2) the witness is in a better position than the trier of fact to draw the inference; (3) the witness has the necessary experiential capacity to draw the inference, that is, form the opinion; and (4) the opinion is a compendious mode of speaking and the witness could not as accurately, adequately and with a reasonable facility describe the facts she or he is testifying about.  But as such evidence approaches the central issues that the courts must decide, one can still expect an insistence that the witnesses stick to the primary facts and refrain from giving their inferences.  It is always a matter of degree.  As the testimony shades towards a legal conclusion, resistance to admissibility develops.
[15]         I observe that the central issue in this case is whether the expenses claimed by the plaintiff constitute “exploration expenditures”.  The defendant takes the position that certain drill patterns employed by the plaintiff do not reflect exploration within the meaning of the agreement, so that the expenses for that portion of the drilling cannot be claimed as constituting “exploration expenditures”.  Accordingly, as stated in the excerpt quoted above, it is proper to insist that the witnesses stick to the primary facts and refrain from giving their inferences in relation to that issue. 
[16]         But that is not the only basis for such insistence.  The proffered evidence does not otherwise meet the required test.  In Graat, the Supreme Court of Canada ruled admissible lay opinion evidence about whether a person’s ability to drive was impaired by alcohol.  The witnesses in question all had an opportunity for personal observation, and the opinion was based on perceived facts as to the manner of driving and the indicia of intoxication of the driver.  These witnesses were in a better position than the trier of fact to determine the degree of impairment and could give the court real help.  The court noted at pages 837-838:
It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state.  This is because it may be difficult for the witness to narrate his factual observations individually.  Drinking alcohol to the extent that one’s ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent.  If the witness is to be allowed to sum up concisely his observations by saying that someone was intoxicated, it is all the more necessary that he be permitted to aid the court further by saying that someone was intoxicated to a particular degree. …  Nor is this a case for the exclusion of non-expert testimony because the matter calls for a specialist.  It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it.  An ordinary witness may give evidence of his opinion as to whether a person is a drunk.  This is not a matter where scientific, technical, or specialized testimony is necessary in order that the tribunal properly understands the relevant facts.  Intoxication and impairment of driving ability are matters which the modern jury can intelligently resolve on the basis of common ordinary knowledge and experience.  The guidance of an expert is unnecessary.
[17]         It seems to me readily appreciable from Justice Dickson’s discussion in Graat that the contemplated parameters of admissible lay opinion evidence do not extend to the sort of circumstances I am considering here.  The application of the factors discussed in The Law of Evidence in Canada confirms this.  Those factors begin with the proposition that the evidence consists of inferences drawn from observed facts, and end with the factor that the opinion is a compendious mode of speaking that allows the witness to sum up more accurately and adequately the facts he or she is testifying about.  Thus, “intoxicated” compendiously covers a number of observed facts including such things as staggering, smelling of alcohol, being red-faced and slurring words, all of which may have formed the basis for the inference of intoxication, and all of which can be explored in cross-examination as the sort of observations commonly understood as indicia of intoxication.

Damages Must Flow From Aggravations of Pre-Existing Injuries

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

Reasons for judgement were released this week by the BC Court of Appeal confirming that judges must award damages when pre-existing conditions are aggravated in part due to a tortious cause.
In this week’s case (Sangha v. Chen) the Plaintiff was involved in a 2005 intersection crash.  Both the Plaintiff and Defendant were at fault for the incident.   The trial judge assessed damages on the basis that the Plaintiff sustained a two year soft tissue injury.  At the time of trial the Plaintiff had on-going chronic pain which was rooted in chronic depression which pre-dated the accident.  However, the Court found that the collision physical injuries “aggravated his previous depressed state” but did not assess damages for the on-going worsened depression finding that the Plaintiff “would have suffered his current symptoms in any event“.
In finding that this was in error and that damages needed to be assessed to reflect the collision caused aggravation of pre-existing depression the BC Court of Appeal provided the following reasons:
[26]        With respect, it does not appear to me to have been open to the judge to find, as she did in para. 110 that Mr. Sangha “would have suffered his current symptoms, in any event”, having found earlier in that same paragraph that “his physical injuries aggravated his previous depressed state”. Further, her conclusion that Mr. Sangha would have suffered his current symptoms appears to be inconsistent with her view expressed in para. 111 that “at most the injuries suffered in the accident aggravated the plaintiff’s mood symptoms”. Given that the “mood symptoms” are exactly those symptoms encompassed within the pre-existing condition of depressive illness, para. 111 appears to allow for attribution of at least a portion of Mr. Sangha’s current symptoms to the physical injuries sustained in the accident.
[27]        I recognize that one must not parse a trial judge’s reasons for judgment with too much exactitude, and so I have turned to the evidence relied upon by the trial judge, the medical report of Dr. Riar, in her determination that all of Mr. Sangha’s current malady derives from his pre-existing condition. Nowhere in that report does Dr. Riar entirely dissociate the current condition of Mr. Sangha from the accident, so as to support the judge’s conclusion that Mr. Sangha would have suffered his current symptoms, in any event. While Dr. Riar clearly considered that the preponderance of Mr. Sangha’s current symptoms derive from the pre-existing mental illness, Dr. Riar also said “I feel that the accident in question aggravated his mood symptoms, which in turn fed into his pains, and they have continued like that all along” and “The only thing the accident did was complicate his situation somewhat more”. Questioned about this, Dr. Riar affirmed this view of the reflection to at least a small degree, of the physical injuries in Mr. Sangha’s current malady:…
[29]        The correct approach to pre-existing conditions is discussed in Athey v. Leonati, [1996] 3 S.C.R. 458, under the rubric of “crumbling skull:
            The so-called “crumbling skull” rule simply recognizes that the pre-existing condition was inherent in the plaintiff’s “original position”. The defendant need not put the plaintiff in a position better than his or her original position. The defendant is liable for the injuries caused, even if they are extreme, but need not compensate the plaintiff for any debilitating effects of the pre-existing condition which the plaintiff would have experienced anyway. The defendant is liable for the additional damage but not the pre-existing damage: Cooper-Stephenson, supra, at pp. 779-780 and John Munkman, Damages for Personal Injuries and Death (9th ed. 1993), at pp. 39-40. Likewise, if there is a measurable risk that the pre-existing condition would have detrimentally affected the plaintiff in the future, regardless of the defendant’s negligence, then this can be taken into account in reducing the overall award: Graham v. Rourke, 74 D.L.R. (4th) 1; Malec v. J. C. Hutton Proprietary Ltd., 169 C.L.R. 638; Cooper-Stephenson, supra, at pp. 851-852. This is consistent with the general rule that the plaintiff must be returned to the position he would have been in, with all of its attendant risks and shortcomings, and not a better position.
[30]        I also refer to Blackwater v. Plint, 2005 SCC 58, [2005] 3 S.C.R., 2005 SCC 58.:
[78]      It is important to distinguish between causation as the source of the loss and the rules of damage assessment in tort. The rules of causation consider generally whether “but for” the defendant’s acts, the plaintiff’s damages would have been incurred on a balance of probabilities. Even though there may be several tortious and non-tortious causes of injury, so long as the defendant’s act is a cause of the plaintiff’s damage, the defendant is fully liable for that damage. The rules of damages then consider what the original position of the plaintiff would have been. The governing principle is that the defendant need not put the plaintiff in a better position than his original position and should not compensate the plaintiff for any damages he would have suffered anyway: Athey. …
[31]        I respectfully conclude that the judge erred in failing to reflect, in her damages award, her conclusion of fact that “the physical injuries aggravated his previous depressed state” and “the accident did cause at least some of” the psychological symptoms. To what extent the damages should have been adjusted to account for these conclusions I cannot say. That question is one particularly within the purview of a trial judge. Accordingly, in my view, the award of damages must be set aside and the issue of quantum of damages must be remitted to the Supreme Court of British Columbia for fresh assessment.

Clinical Records Undermine Personal Injury Claim at Trial

Written by admin on . Posted in Civil Procedure. 55 Comments on Clinical Records Undermine Personal Injury Claim at Trial

I have previously discussed the use of clinical records in a personal injury trial and some limits of their use.  Despite these limits, clinical records can be used to undermine a personal injury claim in appropriate circumstances.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, demonstrating this.
In this week’s case (Lees v. Compton) the Plaintiff was injured in a 2008 collision.  At trial the Court accepted she was injured however concluded that “the injuries…did not impact on er life to the extent that she has claimed“.  In reaching this conclusion the Court relied heavily on admissions made in various clinical records.  Mr. Justice Goepel provided the following reasons:
[68]         The more difficult question is the impact that these injuries have had on the plaintiff’s life.  The plaintiff suggests that the injuries have had a significant impact on her life.  She says she has been forced to give up sports and is no longer capable of holding down a part-time job.  The plaintiff does acknowledge that her long time goal of being a university professor remains intact but submits that her injuries will in the future likely impact on her ability to fulfill the functions of that employment.
[69]         The excerpts in the clinical records suggest that the plaintiff’s limitations are not as great as she claims.  The records clearly put in question certain of the plaintiff’s evidence and raise issues as to her credibility.  The records indicate that the plaintiff has misled the Court with respect to playing field hockey subsequent to the accident, running subsequent to the accident, and the impact of the accident on her study habits…
[73]         In the course of the trial the plaintiff admitted that the physiotherapy notes were business records and admissible pursuant to s. 42 of the Evidence Act.  By definition, that means the document was made in the usual and ordinary course of business and it was in the usual and ordinary course of the business to record in that document a statement of the fact at the time it occurred or within a reasonable time thereafter.  The notes record information that would be of importance to a physiotherapist in formulating an appropriate treatment plan. It is not the type of note which one would expect would be wrongfully recorded.
[74]         While I acknowledge the comments of N. Smith J. in Edmundson that clinical records must be viewed with caution, in this case there are eight separate notes that are in issue.  With regard to each note, the plaintiff claims the physiotherapist is wrong and she never gave the information in question because the information sets out activities in which she did not participate and indeed could not participate because of her injuries.
[75]         On the evidence before me I cannot disregard the physiotherapist’s notes.  While it is possible that a clinical note may be in error it is highly improbable that there would be eight such errors. There is also little evidence that contradicts the notes. As noted earlier, other than Ms. Welch, the plaintiff did not call any of her contemporaries as witnesses and Ms. Welsh’s evidence was limited to her experience on one field hockey team. 
[76]         I find that the plaintiff made the statements to the physiotherapist that are recorded in the clinical notes. Those statements raise significant questions concerning the plaintiff’s credibility.  Her evidence must be viewed with great caution…
[83]         I find the plaintiff was injured in the accident.  As a result of the accident, she suffered soft tissue injuries which continued to cause her some difficulties.  The injuries, however, did not impact on her life to the extent that she has claimed.

$100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

Written by admin on . Posted in ICBC Hip Injury Cases, ICBC Pelvis Injury Cases. 52 Comments on $100,000 Non-Pecuniary Assessment For Pelvic Fracture Leading to Permanent Partial Disability

Adding to this site’s archived cases addressing hip fracture non pecuniary awards, reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, assessing damages for such an injury.
In this week’s case (Dunn v. Lyon) the Plaintiff was injured in a motorcycle collision in 2008.  The Defendant was fully at fault for the incident.  The Plaintiff suffered from various orthopaedic injuries primarily involving her low back and hip.  These went on to pose long term difficulties disabling her from her usual occupation as a server. In assessing non-pecuniary damages at $100,0000 Madam Justice Baker provided the following reasons:
[27]         No medical witness testified at trial and the language used to describe Ms. Dunn’s injuries in the clinical records and in the three expert reports is technical, but counsel agreed that the primary injury can be most briefly described as multiple pelvic fractures.  The fractures and other injuries are summarized on page 4 of Ms. Bos’s report as follows:
– left superior and inferior pubic rami
– right pubic tubercle
– left sacral ala
– left L5 transverse process
– widening of the left SI joint
– displaced bony fragment in the left S3 sacra foramina
– right anterior acetabular rim fracture
– haematomata involving piriformis and iliopsoas muscles
[28]         I infer that none of the fractures, although serious, involved significant displacement, as Dr. O’Brian decided surgery was not required.  Ms. Dunn was admitted to an orthopedic ward for bed rest although permitted to sit up in a chair provided that she did not put weight on the left side of her pelvis.  Her pain was treated with a variety of drugs, including Morphine with Gravol, Oxycodone and Tylenol…
[59]         Not unexpectedly, Ms. Bos’s opinion is that Ms. Dunn does not have the capacity to work either as a waitress or a janitor due to limited standing tolerance, decreased walking speed and limited stooping/bending tolerance.  Her primary limitation, according to Ms. Bos, is “standing/weight bearing tolerance”.   Ms. Bos’s opinion is that Ms. Dunn would benefit from vocational testing and assistance with job search…
[94]         Having considered the authorities referred to and comparing the situations of the plaintiffs in those cases to that of Ms. Dunn, I award $100,000 for non-pecuniary damages.

"Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

Written by admin on . Posted in ICBC No-Fault (Part 7) Benefits. 50 Comments on "Uncertainty" About Payment of ICBC Benefits Undermines Defendant's s. 83 Application

I have previously discussed Part 7 benefits deductions following BC motor vehicle collision injury trials.  In short, a Plaintiff’s damages are to be reduced by the Part 7 benefits (past and future) that they are entitled to.
Reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that if there was uncertainty as to whether Part 7 payments will be made there should be no deduction of damages.
In the recent case (Tsang v. Borg) the Plaintiff had damages for future care of $5,000 assessed at trial.  The Defendant asked the Court to largely discount this award pursuant to s. 83 of the Insurance (Vehicle) Act on the basis that many of the Plaintiff’s future treatments will covered by ICBC under the no fault benefits plan.  Mr. Justice McKinnon noted this argument was “inconsistent” with the Defendant’s trial position and in any event the evidence required for the deduction fell short of the mark.  In dismissing the application the Court provided the following reasons:
[9]             At trial the defendants claimed that the plaintiff’s injuries for the most part were not caused by the accident. In Paskall v. Schelthauer, 2012 BCSC 1859, the court held that the regulations limit the benefits to injuries that the corporation views flow from the accident. It strikes me as inconsistent for the defendants to now argue that the plaintiff is entitled to benefits payable under part 7 and more to the point, raises the distinct possibility that in future, the corporation will deny claimed benefits as “not flowing from the accident”.
[10]         In her affidavit, Shelley Ruggles, the insurance adjuster assigned to administer the plaintiff’s entitlement, indicates some uncertainty about whether future treatments are recoverable. She writes, “Further requests for treatment could be covered under s. 88 of the Regulations”. This suggests some uncertainty.
[11]         It is only where there is no uncertainty as to whether the insurer will accept the treatment and pay the cost that deductions can be made, see Ayles (Guardian ad litem of) v. Talastasin, 2000 BCCA 87. At bar there is no such certainty and I therefore resolve the issue in favor of the plaintiff.
[12]         The award of $5,000 stands.

Police Officer Not Negligent For Crash While Running Red Light in Course of Duties

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

While operators of emergency don’t enjoy complete immunity when running a red light in the course of their duties, they do enjoy a statutory right of way to disobey traffic controls in appropriate circumstances.  Reasons for judgment were released recently by the BC Supreme Court, New Westminster Registry, clearing a police officer from fault following such a collision.
In the recent case (Singh v. British Columbia (Public Safety)) the Plaintiff entered an intersection on a green light.  At the same time the Defendant officer, who was responding to a call of a man with a knife threatening a child, ran a red light while responding to the call.  A crash occurred and the Plaintiff sued for damages.  The claim was ultimately dismissed with the Court finding that the Plaintiff was negligent and the officer properly entered the intersection within the scope of her duties.  In exculpating the officer of fault Madam Justice Adair provided the following reasons:
[68]         Constable Parrish testified that her siren was activated when she approached and was at the intersection of Scott Road and 96th Avenue.  She explained when and how she activated her siren.  She explained how the siren is activated by pressing a button, and that, once the siren button is pressed and the siren is turned on, it remains on until the button is pressed again.  She explained that she reactivated the siren after speaking with her dispatcher, and that she had it activated as she travelled down 96th Avenue towards the intersection with Scott Road.  Her explanations were logical, appropriately detailed and consistent with the circumstances in which Constable Parrish was operating.
[69]         I find that when Constable Parrish arrived at the intersection of Scott Road and 96th Avenue, both the emergency lights and the siren on her vehicle were activated, and they remained activated when she proceeded into the intersection.  I accept Constable Parrish’s evidence in this regard.  Her evidence is supported by and consistent with the evidence of Constable Lucic and also Mr. Barros (whose evidence was unchallenged).  The conclusion that both the emergency lights and siren were activated is not contradicted by the evidence of Mr. Deol or Mr. Chand, which I find to be equivocal.  Moreover, I conclude that, on this point, Mr. Singh does not accurately recall the events.
[70]         I conclude, therefore, that, at the intersection, Constable Parrish had the right of way, and Mr. Singh was obliged to yield to her.
[71]         I find further that Constable Parrish had reasonable grounds to believe that, at the relevant time, the risk of harm to members of the public from the exercise of the privileges under s. 122(1) of the Motor Vehicle Act was less than the risk of harm to members of the public (namely, the child threatened with harm) if those privileges were not exercised….
[78]         I find that Constable Parrish was proceeding cautiously across the intersection, with her emergency lights and siren activated, and her conduct was consistent with that of a reasonable officer acting reasonably and within the statutory powers (and duties) imposed on her in the circumstances on September 12, 2007.  In my view, she was entitled to assume that Mr. Singh would yield the right of way to her.

Diminished Capacity Claims Open Door To Broad Cross Examination

Written by admin on . Posted in Civil Procedure, ICBC Wage Loss.

Reasons for judgement were released this week by the BC Court of Appeal addressing the broad scope of permissible cross examination when a Plaintiff advances a claim for diminished earning capacity.
In this week’s case (McBryde v.Womack) the Plaintiffs were injured in various motor vehicle collisions.  Their claims proceeded to trial by Jury where only modest damages were assessed. The Plaintiffs appealed arguing numerous errors including the scope of the cross examination discussing government financial benefits that were received.  The Court of Appeal held that no overriding errors occurred at trial and upheld the Jury verdict.  In finding the broad cross examination fair game the Court provided the following comments:
[40]        Ms. Golestani contends that she should not have been cross-examined about receiving government financial assistance when immigrating to Canada or about leaving her studies to pursue the business opportunity with Mr. McBryde. Ms. Golestani initiated proceedings to recover damages from some of the respondents, and in so doing placed a number of matters in issue, including her earning capacity and her occupational goals. In my view, the cross-examination complained of was an attempt to explore these issues, and did not exceed the permissible limits of cross-examination. 
 

Contra Proferentem To The Rescue

Written by admin on . Posted in Uncategorized.

Contra Proferentem is a legal principle that is used to interpret ambiguous clauses in a contract against the party responsible for drafting the clause.  Reasons for judgement were released this week by the BC Court of Appeal using this principle to reinstate an insurance death benefit following a fatal plane crash.  (note of disclosure- my firm, MacIsaac & Company was involved in the prosecution of this case)
In this week’s case (McLean v. Canadian Premier Life Insurance Company) the Plaintiff’s spouse was killed when a chartered aircraft in which he was travelling crashed.
He had a $1 million Common Carrier Accidental Death Benefit Rider through the Defendant.  When the Plaintiff applied for payment the Defendant refused to pay arguing that the insurance did not cover crashes while on a Chartered flight.  The BC Court of Appeal disagreed and ordered that the Defendant pay the $1 million insurance benefit.  In finding that this flight was not excluded from coverage the BC Court of Appeal invoked the contra proferentem principle and provided the following reasons:
[14]         The court should give effect to the clear language of the contract, interpreted in the context of the agreement as a whole. It should also endeavour to interpret similar insurance contracts consistently. Where the language of the agreement reveals two possible interpretations, the court should seek to resolve this ambiguity by searching for an interpretation that reflects the true intent and reasonable expectations of the parties when they entered the contract, and achieves a result consistent with commercial reality and good sense. Considerations of reasonableness and fairness inform this exercise. An implied term should not be added to the contract unless it “goes without saying”, or is necessary to provide business efficacy. Nor should the court imply terms that render the express words of the contract meaningless, or contradict them. The onus to establish an implied term rests on the party seeking to rely on it: Perrin at para. 27; Wingtat Game Bird Packers (1993) Ltd. v. Aviva Insurance Company of Canada, 2009 BCCA 343 at para. 23, 96 B.C.L.R. (4th) 109.
[15]         If these principles do not resolve the ambiguity, the principle of contra proferentem will operate to favour construction against the insurer. This principle may not be used, however, to create or magnify an ambiguity…
[35]         I am satisfied it is therefore necessary and appropriate to invoke the doctrine of contra proferentem. While the coverage provision clearly requires that the insured be riding in a Common Carrier at the time of the crash, the words used to define a Common Carrier fall short of creating a clear temporal requirement for each of the definitional elements. Nor does the Rider create a clear exclusion for charter flights.
[36]         I agree with the appellant that the respondent could have easily remedied these deficiencies with clear language if it intended to exclude coverage for charter flights. It must bear the consequences of its failure to do so, and the temporal ambiguity must be resolved in favour of the appellant.
[37]         I conclude the trial judge erred in finding that, to be a Common Carrier, the aircraft had to be operating on a regular scheduled passenger service between defined points at the time of the accident.

$75,000 Non-Pecuniary Assessment for "Moderate, Substantially Resolved" Soft Tissue Injuries

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Soft Tissue Injury Cases, ICBC Whiplash Cases.

Adding to this site’s case-law archives dealing with ICBC soft tissue injury cases, reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for a moderate soft tissue injury.
In this week’s case (Aubin v. Ball) the Plaintiff was injured in a 2009 collision.  Fault was admitted by the Defendant.  The Plaintiff suffered a moderate soft tissue injury that was “substantially recovered” by the time of trial.   She continue to have some symptoms, however, and these were expected to be “here to stay“.  Despite finding that the Plaintiff  “is likely exaggerating her present difficulties to some degree” the court concluded the Plaintiff had genuine ongoing symptoms.  In assessing non-pecuniary damages at $75,000 Mr. Justice Baird provided the following reasons:
[105]     I think it is clear, on all of the evidence, that the plaintiff suffered moderate soft tissue injuries in the September 2009 accident and that these negatively affected her life in a variety of ways for quite some time.
[106]     There is also little doubt that her injuries have substantially resolved, to the extent that her present difficulties may be succinctly stated to be a Grade II whiplash associated disorder to her cervical spine and upper back (right side), and a lumbosacral sprain injury involving the lower lumbar spine and right sacroiliac region, with muscular pain in her right buttock and right hip region.
[107]     In most important ways, I was impressed by the plaintiff as a witness. She struck me as an intelligent and articulate person who, for the most part, had followed the directions of her caregivers and medical advisers and made creditable efforts to get over her injuries and return to her former lifestyle…
[117]     With some reluctance I find that Ms. Aubin is likely exaggerating her present difficulties to some degree. On the basis of everything I have heard from her and others, I conclude that she is doing so unconsciously without any active intention to mislead.
[118]     However I have no reason to reject the proposition, seemingly concurred in by all the witnesses, expert or otherwise, that Ms. Aubin continues to suffer from back pain related to the accident, and that this condition, in the words of Dr. Njalsson may be “here to stay”…
[129]     In recognition of the fact that Ms. Aubin was not as active in approaching recovery as she could have been, but without penalizing her for not being as robust as some plaintiffs, a just, fair and reasonable award in this case is $75,000. The defendant must take his victim as he finds her, and in this case, the accident caused a young woman who was on track in pursuing her ambitions and goals to go off course and lose some very good years of her life. This is no trivial matter.

Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Written by admin on . Posted in BCSC Civil Rule 11, Uncategorized. 56 Comments on Reviewing Discovery Transcripts No Reason to Exclude Expert Report

Reasons for judgement were released this week by the BC Supreme Court, New Westminster Registry, addressing whether an expert report should be excluded because the expert reviewed the examination for discovery transcripts of the parties prior to authoring the report.  In short the answer is no.
In this week’s case (Friebel v. Omelchenko) the Plaintiff objected to the admissibility of two defence reports arguing that “it is improper to provide an expert with examination for discovery transcripts and then leave the expert to draw his or her own conclusions as to which facts should be used to support the opinion“.  Madam Justice Ker rejected this submission finding this practice in and of itself does not render the report inadmissible.  In reaching this conclusion the Court provided the following reasons:
[22]         A review of Dr. Sobey’s reports does not give rise to any of the concerns underlying the previous criticism of the practice of allowing experts to review examination for discovery evidence.
[23]         Dr. Sobey was provided with a set of factual assumptions. Those factual assumptions are set out in detail in his report and where further assumptions have been drawn from a review of the documentary evidence those assumptions and their source have been indicated. For instance, at times, Dr. Sobey makes explicit reference to those assumptions and one example can be found at p. 13 of his July 19, 2013 report where in answering question five, he states, “I have been asked to assume that Dr. Omelchenko was available by telephone contact”.
[24]         Moreover, where Dr. Sobey did make factual assumptions from the documentary information provided to him, those assumptions are also clearly set out. As an example, see p. 10 of Dr. Sobey’s July 19 report where, in answering question two, he states:
Review of Dr. Omelchenko’s chart revealed that he obtained the drinking history, evaluated the Mr. Friebel [sic] for current symptoms of withdrawal, and documented the period since Mr. Friebel’s last drink. Dr. Omelchenko’s chart did not comment on whether Mr. Friebel was using other mood altering drugs. I note from the documents and specifically the PharmaNet profile that Mr. Friebel had been prescribed the sedative medication, Zopiclone…
[25]         When read as a whole, Dr. Sobey’s reports leave no doubt as to the factual assumptions underlying his opinion. As such, the case is distinguishable from Sebastian, supra, and the trier of fact is able to properly evaluate and discern whether the factual assumptions have been proven in evidence at trial and what weight should be given to Dr. Sobey’s opinion.
[26]         The plaintiff’s application to have the reports of Dr. Sobey excluded on the basis that he reviewed transcripts from examination for discovery is dismissed.