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More On Discovery Evidence at Trial and The Adverse Party Limitation

As previously discussed, one limitation when using examination for discovery evidence at trial is that the evidence is only admissible against the party that was examined.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, addressing this limitation finding it is equally applicable during a summary trial.
In this week’s case (Liversidge v. Wang) the Plaintiff sued the Defendant’s for damages.  The Defendants brought Third Party proceedings but the Plaintiff never extended the claim against the Third Party.  In the course of the lawsuit the Plaintiff examined the Third Party for discovery and then set down a summary trial intending to rely on portions of the examination transcripts as against the Defendant.  In disallowing this Mr. Justice Burnyeat provided the following reasons:
12] Rule 12-5(46) (formerly Rule 40(27) states that evidence given at the examination for discovery by a party or a person under Rule 7-2(5) to (10) may be tendered as evidence by a party adverse in interest, but is only admissible against the party examined. This concept was explained by Arnold-Bailey J. in Biehl v. Strang, (2011) 21 B.L.R. (4th) 1 (B.C.S.C). as follows:
I note in Bower v. Cominco Ltd. (1998), 53 B.C.L.R. (3d) 322, 19 C.P.C. (4th) 22 (B.C. S.C.), it was held that the predecessor rule, R. 40(27) of the Rules of Court, B.C. Reg. 221/90 [Predecessor Rules], was enacted in response to Robinson v. Dick (1986), 6 B.C.L.R. (2d) 330 (B.C. S.C.), which permitted the admission of discovery evidence against co-defendants. In Beazley v. Suzuki Motor Corp., 2009 BCSC 1575 (B.C. S.C.) [Beazley] at para. 26, it was held that R. 40(27) only permitted discovery evidence to be admitted against the adverse party examined. (at para. 77)
[13] The decisions outlined in Biehl, supra, and Rule 12-5(46) are clear. The evidence given on an examination for discovery is admissible, but it is only admissible against the adverse party who was examined. Rule 12-5(46) applies equally to a Trial and a Summary Trial.
[14] Under Rule 7-2(1), “a party to an action must make himself or herself available for examination for discovery by parties of record to the action… who are adverse in interest to the parties subject to the examination”. The Plaintiffs did not commence an action against the Third Party so as to make the interest the Third Party adverse to the interest of the Plaintiffs. Here, the Plaintiffs did not have the right to examine the Third Party for discovery. Despite the fact the Third Party consented to being discovered by the Plaintiffs, that consent does not then make the evidence that arises from that discovery available for use by the Plaintiffs against the Defendants.
[15] The evidence provided at the Examination for Discovery of a representative of the Third Party cannot be used on this Summary Trial Application to assist the Plaintiffs in advancing the claim that they make against the Defendants. 

Is Tort Reform Needed To Allow Proper Crime Victim Compensation?

I have previously discussed the harsh reality that when a person is injured through the intentional, criminal wrongdoing of others they often face a far tougher road to receiving fair compensation for their injuries through the legal system as compared to victims of negligently caused harm.  The reason being that when people are injured through negligence defendants are often insured to pay for the damages.  When people are injured through crime this usually is not the case leaving the victim not only with the legacy of their injuries but with a possible ‘dry judgement’ in the event they sue for damages.
Reasons for judgement were released recently by the BC Supreme Court, Port Alberni Registry, dealing with a criminal assault which made me consider this issue again.  In the recent case (Thornber v. Campbell) the Plaintiff was the victim of a “brutal and unprovoked” assault by the Defendant as the Plaintiff “lay sleeping in his bed“.  The assault caused “multiple facial, head and neck, and jaw contusions…oral/dental injuries including multiple dental fractures…PTSD…(and) recurrence of a previously-suffered Major Depressive Disorder“.
The Defendant was criminally convicted for the assault.  The Plaintiff sued for damages and had his non-pecuniary damages assessed at $125,000.   Notably the Defendant did not participate in the proceeding leading me to the suspect that this Plaintiff may have little more than a dry judgement following this assessment.   If that is the case it is worth repeating my views about whether this issue should be reviewed by the legislature to create a meaningful compensation system for victims of crime who pursue ‘dry’ damages through the tort system.  For the sake of convenience here were my previous thoughts:
The law recognizes that those harmed through the fault of others are entitled to reasonable compensation.  When it comes to negligently caused harm defendants are often insured and plaintiffs can collect their judgements.
In cases where Defendants hold inadequate insurance examples can be found where legislatures have intervened to ensure victims can collect on their judgments.  For example, in BC, Section 20 of the Insurance (Vehicle) Act provides a pool of $200,000 of available compensation from ICBC for damages caused by uninsured motorists.  A further example is the requirement for BC motorists to purchase a minimum of one million dollars of under-insured motorist protection coverage.
When plaintiffs suffer harm through intentional torts, however, there often is no insurance to protect the wrongdoer or compensate the victim.  This is an unfair reality in Canadian law.  Victims harmed through assault, battery, sexual molestation and other intentional acts are often faced with dry judgments.  When they seek legal advice they are often turned away being told that litigation may not be worth the effort unless the Defendant has deep pockets
There is no justification I can think of making it fair for a car crash victim to be able to collect their judgement from a pool of money created by the government when the victims of crime are left with dry judgments.
The financial well being of a defendant has no bearing on a victim’s right to damages.  If the government has seen fit to create a pool of funds for victims of motor vehicle collisions to collect from surely a similar system can be created to allow victims of intentional torts facing dry judgements.  This is a rough idea.  Thoughts and feedback are welcome from lawyers and non-lawyers alike.
Comments and feedback are welcome.
 

Agony of Collision Doctrine Shields Driver From Fault Following Head on Crash

Update November 28, 2013 – the below decision was upheld by the BC Court of Appeal in reasons for judgement released today
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I have previously discussed the ‘agony of collision’ doctrine which can shield a motorist from liability following a collision if they are faced with a sudden and unexpected hazard not of their making.  Reasons for judgement were released last week by the BC Supreme Court, Kamloops Registry, demonstrating this doctrine in action.
In last week’s case (Brook v. Tod Estate) the Defendant Goodrick changed lanes when it was unsafe to do so.   Her lane change resulted in a potential collision with a vehicle driven by the Defendant Tod who swerved away into the oncoming lane of traffic.  The decision proved fatal with his vehicle striking the on-coming Plaintiff’s vehicle in a head-on collision.  The Defendant Tod died in the crash and the Plaintiff sustained injuries.
The Plaintiff sued both Defendants.  The Court found the Defendant Goodrick was negligent in making an unsafe lane change.  The Defendant Tod, however, was found faultless for the “agonizing choice made…in the last two or three seconds of his life as he attempted to avoid an accident“.  Mr. Justice Affleck provided the following reasons addressing ‘agony of collision’:
[26]         Mr. Tod’s counsel  stresses the law in relation to the agony of collision which would exonerate Mr. Tod of mistakes which he made in an emergency situation. In Van Zanten v. Bruhs, 1991 CanLII 1023 (BCSC), Mr. Justice A.G. Mackinnon referred to Carswell’s Manual of Motor Vehicle Law, Volume III, 3rd edition, at page 22, where there is a discussion of agony of collision. These words are found:
In a number of cases concerning what is commonly called ‘agony of the collision,’ it has been pointed out that a driver acting in an emergency created by another vehicle or by some extraneous fact cannot be expected to exercise nice judgment and prompt decision, and mere errors of judgment in such circumstances may often be excusable … Where an emergency arises, it is not necessary for a driver to possess extraordinary skill, presence of mind, poise or self-control, and his failure to act as an ordinary person in an emergency is not held to be negligence. He is not necessarily required to adopt the most prudent course and is entitled to a reasonable time, depending on the circumstances, to exercise his judgment as to what steps should be taken to avoid a collision [citations ommitted.]
[27]         Counsel has submitted that it was Mr. Brook who faced the agony of collision and yet his evasive efforts, although fruitless, have not been characterized as negligence. On the other hand it is argued Mr. Tod had choices available to him and his circumstances cannot be properly characterized as the agony of collision. Notwithstanding the able arguments of Ms. Goodrick’s counsel, I do not agree that Mr. Tod did not face an agonizing choice with no time to make a considered decision. I have found Ms. Goodrick’s vehicle intruded into the fast lane already occupied by Mr. Tod’s vehicle. She began her lane change and simultaneously saw Mr. Tod’s vehicle overlapping hers by several feet. It was not realistic to expect Mr. Tod to make an instantaneous decision to accept a collision, no matter how minor it might in retrospect have been, with Ms. Goodrick’s vehicle. In the negligible time available to Mr. Tod, he cannot have been expected to weigh that fine calculation. It is true he could have braked. One difficulty with that proposition is that it cannot be now known if he both braked and swerved. What we do know from the evidence of Mr. Leggett is that Mr. Tod was travelling at a safe speed. He did not create the danger that caused him to react in the agony of the moment. If there had been a collision between his car and Ms. Goodrick’s car, we cannot know if one or both of those cars would have lost control leading to this accident.
[28]         Mr. Garner for the plaintiff submits Mr. Tod had a higher standard of care imposed on him because Ms. Goodrick’s car had an “N” plate on the back indicating she was a novice driver. I doubt if the presence of that letter on a car changes the standard of care of other drivers, but in any event, Mr. Tod was driving with reasonable care before he was cut off by Ms. Goodrick’s failure to see his car before beginning her lane change. It is not open to this Court to criticize the agonizing choice made by Mr. Tod in the last two or three seconds of his life as he attempted to avoid an accident which I find was caused solely by the negligence of the defendant, Ms. Goodrick.
 

"Fat Bottomed Girls" and "Kangaroo Court" Comments Strip Successful litigant of Costs

Update – July 22, 2013the below action was overturned on appeal with the Defendant being ordered to pay general damages, punitive damages and special costs due to his “misconduct during the trial
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Earlier this year I highlighted a judgement addressing whether a litigant blogging about witnesses during the course of a trial, and referenceing ‘fat bottomed girls’ in the process, amounted to witness intimidation.
Reasons for judgement were released today (Mainstream Canada v. Staniford) by the BC Supreme Court, Vancouver Registry, dealing with the costs consequences following the underlying trial.
Ultimately the Plaintiff’s defamation claim against the Defendant was dismissed.  The Defendant would ordinarily be awarded his costs and disbursements under the BC Supreme Court’s ‘loser pays’ system.   Madam Justice Adair refused to follow this ordinary course, however, finding that the Defendant’s conduct during the trial was ‘deserving of rebuke‘ and ultimately stripped him of 75% of the costs he otherwise would be entitled to.  In doing so the Court provided the following reasons:
 [5]             The general rule is stated in Rule 14-1(9) of the Supreme Court Civil Rules:  “costs of a proceeding must be awarded to the successful party unless the court otherwise orders.”  Thus, Rule 14-1(9) continues to confirm the residual discretion of the court to deny, on a principled basis, a successful party the costs to which it would otherwise be entitled:  see LeClair v. Mibrella Inc., 2011 BCSC 533 (“LeClair”), at para. 9.  Where the successful party has engaged in misconduct, the outcome of the litigation is irrelevant, and the court has the power to deprive the successful party of costs…
8]             The discretion conveyed to a judge under Rule 14-1(9) is extremely broad:  see LeClair, at para. 30…
[12]         I described some of Mr. Staniford’s conduct in my Reasons for Judgment as follows, at paras. 88-92:
[88]      . . . During the trial, Mr. Staniford relaunched the GAAIA website, this time using a service provider outside of Canada.  During his cross-examination, Mr. Staniford proclaimed that he would not be stopped by an injunction pronounced in this action.
[89]      Shortly before the trial, and after the witness lists had been exchanged, Mr. Staniford accused the Ahousaht First Nation of accepting “blood money” from Cermaq in one of his Facebook postings. 
[90]      Mr. Staniford looked on the trial as an opportunity to get his message out, and he did not hold back.  For example, in Internet postings during the trial, Mr. Staniford demeaned and mocked the physical appearance of three of Mainstream’s witnesses, Mary Ellen Walling, Leanne Brunt and Dr. Gallo.  Mr. Wotherspoon brought the comments concerning Ms. Walling and Ms. Brunt to my attention when court was convened the morning of January 26, 2012.  The matter was discussed in court and was framed (appropriately) as an issue of Mr. Staniford victimizing Mainstream’s witnesses by his insulting comments.  Mr. Staniford was present during the discussion.  Despite that, Mr. Staniford then repeated his comments about Ms. Walling and Ms. Brunt outside court for an interview that was published on YouTube.
[91]      During his testimony, Mr. Staniford attempted to justify his comments about Ms. Walling and Ms. Brunt as being “very complimentary,” and said he thought Ms. Walling should be “flattered” at being labelled a “fat-bottomed girl.”  The notion that Mr. Staniford would ever pay a sincere compliment to Ms. Walling is, itself, laughable and entirely unbelievable. 
[92]      In another Facebook posting during the first week of the trial, he compared the trial to a kangaroo court….
[15]         By engaging in the conduct I described, Mr. Staniford demonstrated his disrespect for witnesses and his disdain generally for the court and the judicial process. 
[16]         Mr. Staniford’s flagrant disregard of my comments during the discussion on January 26, 2012 concerning his victimization of witnesses and in my ruling (indexed at 2012 BCSC 1609) is particularly troubling.  His YouTube interview shortly after my ruling is roughly equivalent to giving the court “the finger,” as he did to Mainstream and its lawyers in response to their demand letter.  Mr. Staniford’s attitude (as expressed during his cross-examination) seemed to be that since Lord Denning’s comments (which I adopted) had been made in the early 1960s, they did not apply to him and he could ignore them.  Once again, Mr. Staniford demonstrated that he is a bad listener.  His repetition in court, and under oath, of his ridiculous justification for his sexist and puerile comments about Ms. Walling and Ms. Brunt – that the comments were complimentary and flattering – insulted the intelligence of anyone who had to listen to it. …
[20]         Although I consider Mr. Staniford’s misconduct in connection with the trial to be serious and clearly deserving of censure, I think that depriving the defendants of all of their costs of the action is too severe, given the dollar amounts likely involved for a 20-day trial.  I have concluded that an appropriate order is that the defendants have 25% of their assessed costs and disbursements.  (There should be only one set of costs for both defendants.)  Depriving the defendants of 75% of their assessed costs and disbursements, in my view, reflects appropriate condemnation of Mr. Staniford’s misconduct.

Concussions 101

 

If you are looking for a quick introduction to concussive injuries (or if you need a great aid for explaining concussions to others), this video by Dr. Mike Evans is about as good as it gets.  I first found this while searching the Sport Concussion Library, a great free resource for parents, athletes, coaches and anyone else interested in concussions in sports.

Jury Strike Application Succeeds in Complex Personal Injury Case

Earlier this month I highlighted two decisions addressing whether injury trials with numerous expert witnesses were too complex for a jury to hear.  The first case dismissed the jury notice and the second case upheld the notice.
This week a futher judgement was released addressing this topic finding a case with 475 pages of expert evidence was too complex for a jury.
In this week’s case (Moll v. Parmar) both the Plaintiff and Defendant filed a jury notice.   At the trial management conference the Defendant indicated that a jury trial was still anticipated.   As trial neared, however, the Defendant changed their view and brought an application to strike the Plaintiff’s jury notice.  Mr. Justice Abrioux found that the case was too complex for a jury and in so doing provided the following reasons:
[43]         What militates against the action proceeding before a jury is the sheer volume of medical reports, and in many instances, the scientific aspect of the evidence. I have reviewed many of the medical and other experts’ reports which were provided to me in October 2012. As I noted above, they comprise approximately 475 pages. The reports refer to other reports and assessments. The neuropsychological reports deal with many different tests, as do the vocational and functional capacity evaluations.
[44]         I  emphasize that what is in the record before me are experts’ reports, that is, evidence which, depending on admissibility issues, will be before the trier of fact. In that regard they are to be distinguished from, as I have noted, hospital and other records which may well have much less significance or importance to the trier of fact.
[45]         In my view, there can be little doubt that the issues in this case will require a prolonged examination of documents or accounts or a scientific or local investigation. The plaintiff presents two alternative theories, the first being whether the accident caused an organic brain injury, which is scientifically complex. The reports of the neuroradiologist attest to this…
[51]         I am satisfied that both tests set out in Rule 12-6(5)(a)(i) and (ii) have been met. First this case does involve a scientific investigation which will include a prolonged examination of documents, in particular experts’ reports, that cannot conveniently be heard by a jury. Secondly, the issues are sufficiently intricate and complex that the trial should not proceed with a jury. Justice would not be done if that were to take place. Accordingly, I direct that the trial be heard by the trial judge without a jury.

Medical Advisor Opinion a Prerequisite For Post Trial Discretionary Benefit Deduction

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.
Two sets of reasons for judgement were recently released by the BC Supreme Court, Vancouver Registry, addressing this deduction finding that before a Court can deduct damages for ‘discretionary’ Part 7 benefits there must be evidence of the corporation’s medical advisor.
In the first case (Paskall v. Scheithauer) the Plaintiff was awarded just over $65,000 by a jury for her injuries.  ICBC sought to deduct mandatory and discretionary Part 7 benefits from this amount.  In discussing the burden required for these deductions and in denying the application Mr. Justice Smith provided the following reasons:
3]         The replacement hearing aids and related expenses are a discretionary benefit under s. 88(2). The defendant has provided an affidavit from an ICBC claims examiner who says that the corporation paid for a hearing aid on one occasion, in January 2007, and who says: “I expect ICBC will continue to re-imburse reasonable incurred hearing aid expenses”.
[14]         The examiner’s stated expectation falls far short of the evidence required. Before discretionary benefits can be paid, s. 88(2) requires an opinion from “the corporation’s medical advisor”. No evidence from any such person has been put forward. The expert who provided a care opinion for the defendant at trial is an occupational therapist. There is no evidence that ICBC accepts her in the capacity of its “medical advisor” for purposes of s. 88.
[15]         Although the opinion of a medical advisor is a precondition to the payment of discretionary benefits, the corporation is still not bound to pay them. The examiner’s expectation is no more than an opinion about what his employer will do in the future. There is no evidence that he has the authority to make that decision and no explanation of the basis on which he feels able to express an opinion on what the corporation will do for the remainder of the plaintiff’s life…
[18]         At this stage of the proceeding, I believe it is appropriate to acknowledge the fact that in cases such as this the corporation has conduct of the defence on behalf of its insured. There is certainly no evidence that the corporation now disavows the position it instructed counsel to take at trial.
[19]         Accordingly, I find that the defendant has failed to meet the onus of proving the plaintiff is entitled to the benefits for which deduction has been sought.
In the second case (Stanikzai v. Bola) the Plaintiff was awarded just over $189,000 following trial.  ICBC sought to deduct some $16,000 in Part  7 items.  In disallowing the majority of these Mr. Justice Smith echoed his earlier comments stating as follows:
[24]         In her affidavit, the adjuster says that such a fitness program is “similar to physiotherapy” and therefore a mandatory benefit under s. 88(1). I cannot accept that assertion. Section 88(1) refers to “physical therapy”, which presumably means therapy by a licensed physiotherapist. It also refers to certain other specific forms of therapy. It does not refer to services by other professionals that may be “similar” to the named therapies.
[25]         Having regard to the requirement for strict compliance with the Act and its Regulations, the training program is not a mandatory benefit under s. 88(1). I accept that it could qualify as a discretionary benefit under s. 88(2), but under that section an opinion from “the corporation’s medical advisor” is a precondition to payment. There is no evidence of any such opinion. The defendants have failed to prove a basis for that deduction.
 

Bus Driver Negligent For Injuries Caused in "No-Impact" Incident

As highlighted earlier this year, a motorist can be found negligent for injuries caused to a passenger even in the absence of a collision.  If a motorist makes an abrupt movement causing injuries to occupants liability can follow if the abrupt movement falls below the expected standard of care.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing such an incident.
In last week’s case (Erickson v. Sibble) the Plaintiff was riding as a passenger in the Defendant’s bus.  As he approached an intersection he brought his vehicle to an abrupt stop to avoid running a red light.  The sudden breaking caused injuries to the Plaintiff.  In finding the bus driver negligent and liable for the injuries sustained in this ‘no-impact’ incident Madam Justice Ballance provided the following reasons:
[62]         I have found that Mr. Sibble made the following oral and written statements:
·       he apologized to Ms. Erickson and Ms. da Silva for the manner of the stop and declared that he did not want to get a “red light” ticket;
·       he told Ms. Erickson that he had applied the “emergency brake”, by which he was referring to the maxi-break, at the time of the stop;
·       the statements that Mr. Pearson captured in his incident report and those that Mr. Pearson testified about, as detailed above; and
·       that he had stopped “a little harder than normal”, as recorded in his incident report.
[63]         Mr. Sibble’s statements constitute admissions and are admissible against him, either as admissions against interest or as an exception to the hearsay rule:  R. v. Evans, [1993] 3 S.C.R. 653; R. v. Foreman (2002), 169 C.C.C. (3rd) 489 (Ont. C.A.); R. v. Mapara, 2005 SCC 23.  If admitted on the latter basis, I find that the requisite features of reliability and necessity are present.  Under either doctrine, his admissions are admitted for their truth.
[64]         I am satisfied that from the outset of Ms. Erickson’s journey, Mr. Sibble’s driving pattern was erratic, by which I mean that he engaged in a pattern of acceleration and braking that caused the bus to lurch and jerk as it travelled along.
[65]         The evidence establishes that the bus was moving at not less than 40 kilometres per hour on its approach to the Intersection, and when Mr. Sibble was a distance of ten or, at most, fifteen metres from it, he became aware that the light was amber.  The evidence supports the inference that when he noticed the amber light, he could not be sure how long it had been that colour, and was therefore concerned that he was approaching the Intersection on a stale amber that was about to turn red.  Mr. Sibble was concerned about whether he had enough time to stop safely or sufficient time to proceed through.  He anticipated that were he to opt for the latter, the light could change to red and he might get a “red light” ticket.  By the time Mr. Sibble elected to stop, the bus was even closer to the Intersection than when he had first noticed the amber light.
[66]         I accept that, at first Mr. Sibble braked “softly”.  However, it became readily apparent to him that despite his braking efforts, the front of the bus was moving over the crosswalk and trespassing into the Intersection.  The probabilities of the situation show that in recognizing this unwelcome state of affairs, Mr. Sibble applied the brakes suddenly and with much greater force, equivalent to slamming hard on the brakes, to prevent the bus from ingressing further into the Intersection.  I think it is more likely than not that he also drew on the maxi-brake in a misguided attempt to fortify the conventional braking.
[67]         Mr. Sibble’s sudden and vigorous braking caused the bus to come to an abnormally abrupt and jarring stop.  The stop was not in the nature of a movement that would fall within the normal range reasonably expected by the transit travelling public, as was the case for example in Sawatsky v. Romanchuk, [1979] B.C.J. No. 964 (S.C.).  There was no reason, such as a pedestrian stepping out in front of the bus or a vehicle unexpectedly appearing or threatening to appear in Mr. Sibble’s oath, so as to justify stepping on the brakes with such sudden and excessive force.  Even by jamming on the brakes, Mr. Sibble was not able to stop the bus until approximately one-third of its length had intruded into the Intersection.
[68]         I find that Mr. Sibble glanced into his interior mirror as soon as he had made the stop to ensure that his passengers were safe precisely because he knew that the stop had been abnormally abrupt.  It is not clear why at that time he did not see evidence of Ms. Erickson’s mishap.
[69]         The evidence supports a finding that had Mr. Sibble been maintaining a proper lookout and exercising due care and attention as he advanced on this major intersection, he would not have been “caught short” in the sense of not having sufficient time to safely stop or proceed through safely before the light turned red.  The evidence as a whole supports the conclusion that he failed to exercise the due care and attention and otherwise conduct himself in a manner reasonably expected of a prudent bus operator in all of the circumstances.  Stated another way, I find that the Accident would not have occurred just the same had Mr. Sibble acted in accordance with his standard of care in discharge of the high duty that he owed to Ms. Erickson.

Chiropractor Qualified to Opine on Diagnosis and Prognosis in BC Injury Trial


In my continued efforts to highlight unreported injury law decisions of the BC Supreme Court, reasons for judgement were recently provided to me addressing the qualifications of a chiropractor to opine on injury causation and prognosis.  This unreported case is a little dated (from 2008) however the discussion is of value and I am happy to publish the decision here.
In the recently provided case (Sloane v. Hill) the Plaintiff was injured in a collision.  She sued for damages and proceeded to jury trial.  In the course of the trial the Defendant objected to the qualifications of the Plaintiff’s chiropractor arguing that a “chiropractor has no basis in training or expertise” to offer opinions regarding diagnosis and prognosis for traumatic injuries.  Mr. Justice Grist disagreed and allowed the chiropractor to be qualified as an expert.  In doing so the Court provided the following reasons:
[5]  Chiropractors are licenced to provide this form of care, and there is no indication that chiropractors are generally incompetent in what they do or, in particular  in the process of forming diagnosis and prognosis.  If nothing else here, the forecast for the future ties to what the chiropractor expects to be the future cost of performing her services…
[6]  The chiropractor will testify and will be subject to cross-examination…
[8]  The admissibility of an expert’s report is dealt with in R v. Marquard [1993] SCJ No. 119 (SCC).  At issue is the witness’s ability, through experience and training, to aid the triers of fact in opinion based on special training or experience; opinion the triers are not likely to be able to form on their own.
[9]  Here, I think the chiropractor does offer something towards this end.  Further, through cross-examination and with the medical evidence to be called, I think there will be ample opportunity for counsel to put the opinion in proper perspective, and there is little likelihood of prejudice.  I think the public is well-acquainted with different healthcare providers, what they can offer and their limitations.
[10]  On balance, I am of the view these opinions can be taken in evidence.
As always I am happy to provide a copy of the full transcript of this unreported decision to anyone who contacts me and requests one.

Defence Medico-Legal "Vacuum" Defeats Post Trial Costs Application

UPDATE January 28, 2014 – the BC Court of Appeal overturned the below result in reasons for judgement released today
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In an interesting demonstration of the BC Supreme Court’s discretion relating to costs awards following trials where formal settlement offers were made, reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, refusing to award ICBC costs where a Jury’s damages amounted to less than 10% of ICBC’s best formal settlement offer.
In the recent case (Paskall v. Scheithauer) the Plaintiff was injured in a 2005 motor vehicle collision.  Fault and damages were at issue.  Prior to trial ICBC tabled a $700,000 formal settlement offer.  The Plaintiff proceeded to trial and sought damages of over $2 million.  After a liability split of 80/20 in the Plaintiff’s favour the damages awarded by the jury came to just over $65,000.
Having enjoyed substantial financial victory as compared to their pre-trial offer, ICBC sought post offer costs and disbursements arguing their offer ‘ought to have been accepted’.  Mr. Justice Smith disagreed finding, interestingly,  that the the Defendant’s failure obtain medico-legal reports despite having the Plaintiff attend two independent medico-legal assessments created an evidentiary vacuum making it impossible for the Plaintiff to conclude that the formal offer was one that reasonably ought to have been accepted.  In dismissing ICBC’s sought costs the Court provided the following reasons:
[32]         In order to determine whether an offer is reasonable and ought to be accepted, the plaintiff must be able to consider it in relation to the evidence expected at trial and the apparent range of possible outcomes. In a personal injury case, that exercise usually includes consideration of conflicting medical opinions, along with the possibility and likely consequences of the court preferring certain opinions over others. Plaintiff’s counsel who is relying on an opinion from Dr. X can advise his or her client of the reduction in damages that may result from the court rejecting the evidence of Dr. X and accepting the opinion of Dr. Y that is being relied on by the defendant.
[33]         In this case, the evidence relied on by the plaintiff included opinions of a neuroradiologist, a neuropsychologist, a psychiatrist, an otolaryngologist and two physiatrists. The only experts put forward by the defendant on the question of damages were the occupational therapist dealing with cost of future care and the economist. The defendant served no medical expert opinions, although the plaintiff had attended two independent medical examinations at the request of defence counsel.
[34]         The onus of proof at trial is on the plaintiff. The defendant is under no obligation to produce medical evidence and may rely entirely on cross-examination of the plaintiff and the plaintiff’s medical experts to support an argument that the plaintiff has failed to prove damages. That is what defence counsel chose to do in this case, apparently with great success.
[35]         But the onus of proof at trial is not necessarily relevant to the question of whether an offer made before trial “had some relationship to the claim” or “could be easily evaluated”. In choosing to defend this case in the way he did, the defendant also chose not to provide the plaintiff with evidence on which she could judge the reasonableness of the offers to settle. With the plaintiff’s medical reports in hand, and in the absence of contrary medical opinions, I do not see how reasonable counsel could have recommended acceptance of either of the defendant’s offers or justified such a recommendation to the plaintiff.
[36]         A second factor for consideration set out in R. 9-1(6) is the relationship between the offer and the final judgment. However, the court cautioned against putting too much weight on this factor in cases involving jury trials, given the unpredictability of jury awards: Smagh v Bumbrah, 2009 BCSC 623 at paras 13-14.
[37]         In this case, I find the consideration under R. 9-1(6)(a) to be determinative. I am not only unable to say the offers ought reasonably to have been accepted, but I find that they could not reasonably have been accepted in the context of the evidentiary vacuum in which they were presented. I conclude the plaintiff is entitled to her costs as if the offers had not been made.