Tag: bc personal injury claims

The Important Role of Treating Doctors in BC Personal Injury Claims

Reasons for judgement were released today by the BC Supreme Court highlighting the valuable role treating physicians have in personal injury claims.
In today’s case (Deiter v. Briggs) the Plaintiff was injured in 2 BC car crashes.  Liability was admitted for both crashes leaving the court to deal with the issue of quantum of damages (value of the Plaintiff’s injuries and losses).
The Plaintiff called 2 physicians in the course of her claim to assist the court with opinion evidence explaining the extent and nature of her injuries.   These physicians were her family doctor (Dr. Cordoni) and a well respected rheumatologist, Dr. Shuckett.   Dr. Shuckett gave the following diagnosis and prognosis for the Plaintiff’s injuries:

[21]         Dr. Shuckett examined Ms. Deiter in December 2008.  Based on the patient’s own description of her history and Dr. Shuckett’s physical examination of her, Dr. Shuckett arrived at the following diagnosis as set out in her report:

1.               Cervicogenic headaches.

2.               Mechanical neck pain, mainly due to musculo-ligamentous injury with bilateral neck pain and some modest decrease of neck mobility.  She may very well have zygapophyseal joint capsular injury of the neck.

3a.     Myofascial pain syndrome of the left neck and shoulder girdle region with palpable muscle spasm.

3b.     Myofascial pain syndrome of right shoulder girdle region with palpable muscle spasm.

There is some myofascial pain syndrome with spasm of the muscle and rounding of the muscle adjacent to the right medial scapula.

3.               Right shoulder impingement and rotator cuff tendonitis suspected (appears to be mild).

[22]         Dr. Shuckett gave the opinion that the symptoms suffered by the plaintiff were related to the first accident and but for the accident, Ms. Deiter would not have these symptoms or diagnoses.  As to the future prognosis, Dr. Shuckett reported that the prospect of further recovery is guarded now that two and a half years have passed since the accident.  Dr. Shuckett gave the opinion that:

It is really not possible to measure degree of disability or impairment from work in an objective sense with chronic soft tissue pain.  I cannot rule out that she may find herself unable to pursue fulltime work in the longer term future due to her injuries, but this is not something I can predict.  However, based on her current status, it appears that she finds it difficult to contemplate increasing her work hours.

And further:

She may not improve from her current status as her pain is chronic by this time.

The Court largely accepted this evidence and awarded damages of just over $144,000 for the Plaintiff’s injuries and losses.

The Lawyer for the Defendants made critical comments about Dr. Shuckett’s expert opinion.  In rejecting the defence lawyers submissions Madame Justice Griffin said the following with respect to the important role treating physicians play in BC Personal Injury Lawsuits:

[28]         The defendants suggested in argument that Dr. Shuckett was an advocate but I do not accept that characterization.  I found her to be very clear and objective in her evidence which she was well qualified to give.  I pause here to note that the defendants appeared to me to show a lack of objectivity when assessing the role of physicians in litigation of this nature.  The defendants stated in written and oral argument:

In contrast to Dr. Shuckett, Dr. Cordoni presented as a [sic] impartial and unbiased physician which is highly unusual for a general practitioner.

[29]         This submission is what is known as a back?handed compliment.  It is a gratuitous attack on Dr. Shuckett to suggest that she was not impartial, a proposition which is entirely unfair on the evidence.  It is a suggestion that appears to praise Dr. Cordoni while it insults general physicians as a group, as if to say they are typically not able to provide independent medical evidence in soft tissue injury cases.  This cynical submission is outrageous and unduly partisan.

[30]         This court hears many cases involving plaintiffs with claims that someone else’s negligent action caused them personal injuries.  These are persons who are entitled to damages under the common law of this country if their claims are proven.  These are persons who may be suffering greatly from their injuries.  This court could not perform its function of determining these important claims without the help of treating medical physicians including general practitioners.

[31]         Thus, physicians who do testify despite the inconvenience are performing a very important professional and public duty.  Coming to court to testify and to face cross?examination may be the last thing a busy physician wants to do, faced with the burdens of practice.  Often a general physician is the one physician who knows the patient best and who will have the longest history of treating the plaintiff before and after the incident giving rise to the claim.  This court is extremely appreciative of the role physicians play in giving evidence.  I sincerely hope that counsel for the defendants in this case reflected only his views, and not a general culture amongst legal counsel who represent defendants or defendant’s insurers, when he decided to advance his submission which was so disrespectful of the important role of family doctors in personal injury cases.  It is true that in some cases a medical practitioner may be impartial but it reflects poorly on the defendants to simply advance this as a general proposition.

$220,000 Non-Pecuniary Damage Assessment for "Psychotic Disorder"

Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, awarding a Plaintiff damages for serious injuries and losses as a result of a 2001 Car Accident in Mission, BC.
What was interesting about this case (Polovnikoff v. Banks) was the very unique injuries the Plaintiff suffered as a result of this collision.  Madam Justice Bruce found that the Plaintiff sustained a Mild Traumatic Brain Injury and a Psychotic Disorder as a result of this crash.  While accident related brain injury cases are not all that uncommon it is quite rare to see a claim with an alleged accident related psychotic disorder to proceed to trial.
Madam Justice Bruce awarded $50,000 in non-pecuniary damages (pain and suffering) for the Plaintiff’s brain injury and related cognitive deficits.  In doing so she noted that the Plaintiff suffered from a ‘persistent cognitive impairment with predominant problems with his attention, concentration, ability to hold information, and being in the present with memory difficulties, short term and longer term memory problems‘.
The court then assessed the Plaintiff’s psychotic disorder separately and in valuing this non-pecuniary loss at $220,000 the court noted the following:

[377] Superimposed upon the plaintiff’s cognitive impairment is a completely disabling psychotic disorder. The plaintiff’s mental state has significantly interfered with his ability to function normally in every aspect of his life. His psychotic features adversely affect his ability to think and reason, impair his judgment, cause him to neglect personal hygiene, enhance the adverse impact of his cognitive impairments, including his ability to concentrate and short and long term memory, and make him apathetic about his life and others around him. The plaintiff is plagued by sleeplessness, anxiety, irritability, aggressive or violent feelings, lack of insight, verbal and physical inhibition, and recklessness. Mr. Stanus concluded that the plaintiff was completely unemployable in a competitive market due to his psychotic disorder.

[378] Clearly the plaintiff has undergone a catastrophic loss of enjoyment of life. While there is some doubt about how successful Festival Foods was as a going concern, it is apparent from both the plaintiff’s testimony and the collateral witnesses called by the plaintiff that he really enjoyed running the company and that he had significant skills and talents that have been lost entirely as a result of this disabling mental illness. The plaintiff requires constant supervision and is unable to carry out the simplest tasks. He no longer pays any attention to his physical care and hygiene and has lost interest in all of his pre-accident physical and recreational activities. Based on these factors I award the plaintiff $220,000 for non-pecuniary damages arising out of the psychotic disorder.

Madam Justice Bruce then went on to reduce this award significantly to $68,200 to account for the many other factors that played a potential role in the development of a psychotic disorder in the absence of this accident.  This made for a lengthy judgement almost 500 paragraphs in length.  Below are the highlights of the courts discussion reducing the award for damages for the Plaintiff’s psychotic disorder:

C.        Reductions from Non-Pecuniary Damage Award for Psychotic Disorder

[379] This award must be reduced by 2% to reflect the small but measurable risk that the plaintiff’s alcohol consumption may have led to the psychotic disorder regardless of the July 2001 accident. This award must be reduced a further 45% to reflect the adverse impact of alcohol consumption on the progression of his psychotic disorder and the involvement of alcohol addiction in the symptoms that are currently a part of the plaintiff’s clinical presentation.

[380] Turning to the other accidents and subsequent events, it is apparent from the medical reports of Dr. Hunt and the clinical notes of Dr. Yokoyama that the December 2000 accident was the beginning of the plaintiff’s emotional distress albeit his major psychiatric symptoms appeared after the 2001 accident. Both Dr. Gopinath and Dr. Hunt attribute the plaintiff’s “superimposed psychological and psychiatric disturbances” to the injuries he suffered in both the December 2000 and the July 2001 accidents. Only Dr. Smith ruled out any causal relationship between any of the other accidents and the plaintiff’s current psychiatric illness: December 31, 2008 report at p. 19. This accident also appears to be the most seriously disabling for the plaintiff next to the July 2001 accident. Thus I would allocate to this accident 10% responsibility for the damages awarded to the plaintiff for the mental illness he suffers from.

[381] The accident witnessed by the plaintiff in January 2002 caused him to have a panic attack and increased his anxiety level for a brief period. The clinical notes of Dr. Yokoyama indicate the anxiety was improving after only a few days. In addition, this is clearly a non-tortious cause that does not reduce the defendants’ liability. The accident that occurred on October 21, 2002 was also fairly minor and nothing in Dr. Yokoyama’s clinical records indicates the plaintiff suffered any lasting emotional trauma as a result of this event. Accordingly, I attribute no responsibility for loss to the defendant in that case.

[382] The plaintiff was involved in an accident on September 24, 2003. He was a passenger in a vehicle driven by his father when this accident occurred. The van driven by Mr. Polovnikoff became hooked to the rear of a truck and this caused the van to be swung in a circular motion causing damage to the front bumper and two broken windows. When Dr. Hunt saw the plaintiff on November 27, 2003, he was confused, irrational, and having abnormal mental thoughts. The plaintiff disclosed that he was too frightened to drive or be a passenger in a vehicle because of the possibility of another accident. Dr. Hunt was so concerned about the plaintiff’s mental stability that he considered having him committed to hospital for acute psychiatric care.

[383] While the plaintiff appeared much more disturbed than in previous assessments, Dr. Hunt had already seen psychiatric problems developing in June 2003 before this accident had occurred. In addition, there is no follow up visit with Dr. Yokoyama, which was unusual for plaintiff, to indicate that this state of high anxiety continued for an extended period. Indeed, the next visit to Dr. Yokoyama was on February 24, 2004 after another accident had occurred. Thus, although it is apparent this accident caused some deterioration in the plaintiff’s condition, I am unable to find that it was either substantial or long term in its effect. The accident on February 18, 2004, which Dr. Yokoyama concluded had aggravated the plaintiff’s agitation level, was also short lived in effect. During the next visit to Dr. Yokoyama on March 17, 2004 there is no reference to any aggravation of his ongoing concussion symptoms. Thus I reduce the award for both these events by a nominal 2%.

[384] The accident on May 30, 2004 in the parking lot of the Astoria hotel seemed significant to Ms. Lustado. She considered this to be a turning point in their relationship because of the noticeable deterioration in the plaintiff’s emotional demeanour. Dr. Yokoyama’s clinical notes on June 2, 2004 indicate that the plaintiff developed anxiety and tension after this accident in addition to an aggravation of his soft tissue injuries. On August 30, 2004 there is also a reference in Dr. Yokoyama’s clinical records to “regression – post concussion syndrome” which I interpret as some deterioration in the plaintiff’s mental state. Accordingly, I reduce the award by 5% to reflect the damage caused by this defendant’s negligence.

[385] The accidents that occurred on November 18, 2004, March 22, 2005, and November 29, 2006 do not appear to have aggravated to any measurable degree the psychotic disorder suffered by the plaintiff. By November 2004 his symptoms were well developed and the visits with Dr. Yokoyama after these accidents indicate the major concern in each case was an aggravation of the soft tissue injuries.

[386] Finally, the plaintiff was involved in an assault in or about July 2006 which I find exacerbated his emotional problems and led to deterioration in his mental health. Dr. Gopinath reported that following this assault the plaintiff was clearly more paranoid in general and in regard to the police in particular. Dr. Gopinath believed the plaintiff had been “badly shaken up” by this experience and developed symptoms of post traumatic stress disorder. He was having sleep difficulties, waking up with nightmares, and panic attacks. Dr. Gopinath’s December 16, 2008 report also features this assault as significant in the plaintiff’s clinical presentation and he acknowledged in his testimony that the plaintiff’s psychotic symptoms worsened after this event. It was also partly due to this assault that Mr. Polovnikoff moved his son and Ms. Lustado to Keremeos. They wanted to get away from the police and the other stressors in the plaintiff’s life.

[387] While this event is significant, it must be acknowledged that the plaintiff’s psychotic symptoms were well entrenched at this time and his inability to function normally in all aspects of his life had already been a reality for some time. Dr. Gopinath had observed severe psychotic symptoms as early as October 2005 when the plaintiff first came to him for treatment. Accordingly, I find the award should be reduced by a further 5% as a result of this tortious intervening event.

[388] In summary, the non-pecuniary award arising from the psychiatric illness suffered by the plaintiff in the amount of $220,000 must be reduced by a total of 69%. The reduced award is therefore $68,200. The total award for non-pecuniary damages is $118,200 ($50,000 plus $68,200).

BC Court of Appeal Discusses Future Wage Loss in Personal Injury Claims

Reasons for judgement were released today by the BC Court of Appeal increasing the award a Plaintiff received at trial for Diminished Earning Capacity (future wage loss).
In today’s case (Pett v. Pett) the Plaintiff sustained serious injuries in a 2003 BC motor vehicle collision.  The findings of fact made by the trial judge giving rise to the appeal were as follows:
[1] The appellant, Jacob Pett, now aged 23, was injured in a motor vehicle accident that occurred on a logging road near Rock Creek, British Columbia, on November 15, 2003.  He was a passenger in a pick-up truck being driven by his father, the defendant, David Pett.  The driver lost control and the vehicle slid off the road and rolled over a number of times before coming to rest in a farm field.  The appellant initially suffered from a concussion and an injured shoulder, but recovered satisfactorily from these injuries.  He complained of a very painful back shortly after the accident.  This back injury persists and continued to cause him difficulty at the time of trial…
[5] The judge found that the back injury had a negative impact on his recreational activities and that his enjoyment of those activities had been and will be diminished because of his back pain.  The judge awarded the appellant $85,000 for non-pecuniary damages.  He assessed damages for income loss between the date of the accident and the date of trial at $23,000.  The judge awarded the appellant the sum of $120,000 as damages for future loss.  It is this particular award that has led to the present appeal.  The appellant asserts that the amount awarded for future loss was unreasonably low.  The respondent submits it was an adequate award and says that if anything the award may have been on the generous side.
The BC Court of Appeal agreed with the Plaintiff that the damages for future wage loss were low given the findings of fact made by the trial judge.  In increasing the future wage loss award to $225,000 the Court summarized and applied the law of future wage loss as follows:

[18] In the recent case of Lines v. W & D Logging Co. Ltd., 2009 BCCA 106, Saunders J.A. said this:

[57]      There are two major components to an assessment of loss of future earning capacity.  One is the general level of earnings thought by the trial judge to be realistically achievable by the plaintiff but for the accident, taking into account the plaintiff’s intentions and factors that weigh both in favour of and against that achievement, and the other is the projection of that earning level to the plaintiff’s working life, taking into account the positive and negative vagaries of life.  From these two major components must be applied an analysis that produces a present value of the loss, adjusted for all appropriate contingencies.

[19] I think this to be a helpful framework for a court to follow in fixing a measure of damages for future loss.  Some cases speak of the loss of a capital asset and some of the loss of future earnings, but the essential matter that engages the attention of a court making an assessment in this area is to endeavour to quantify the financial harm accruing to the plaintiff over the course of his or her working career.

[20] In the case at bar, the trial judge said this in making his award for future loss:

[79]      Given the significant negative contingencies present here however, I am not satisfied that the award under this head of damages should be as high as suggested by plaintiff’s counsel.  I note that he is currently working alongside his father and being paid the same hourly rate.  He does, however, work fewer hours, partly in response to his lower back pain.  In all of the circumstances, I assess his loss of future earning capacity at $120,000.

[21] While there is unquestionably a measure of uncertainty about what the future holds for a person in the position of this appellant with a long working life ahead of him, the judge did not explain what he considered in arriving at that figure.  Particular contingencies are not identified and, perhaps more significantly, there is virtually no reference to the figures put forward by the parties’ experts, aside from a reference to some figure suggested by appellant’s counsel, presumably the $470,000 figure aforementioned.  The task of this Court in deciding on the adequacy of the award for future loss is made difficult because we are left with little to demonstrate how the figure of $120,000 was assessed as an appropriate damages award under this head by the trial judge.  Having regard to the evidence before the judge, particularly the reports of the two economic experts, the award appears to me to be unduly modest.

[22] I have considered whether the case might be remitted to the Supreme Court to deal with this issue in a more satisfactory fashion.  The appellant urged us, if we considered the award of damages inadequate, to set a figure.  It was submitted that considerations of cost and timing would support such an approach.  While this Court is usually reluctant to embark upon its own assessment of what is an appropriate figure for damages, I consider that this case calls for that treatment.  I reach this conclusion because there were no particular live issues of credibility in the instant case and the judge was of the view that he should generally accept the view of the medical experts called by the appellant.  We have the evidence of Messrs. McKellar and Gosling before us.  I consider it would not be appropriate to refer this matter back to the trial court for a new assessment having regard to the amounts involved and the additional delay and expense that would be occasioned.

[23] It seems to me that the figure adumbrated by Mr. Gosling, approximately $300,000, is a useful starting point for an analysis of the loss suffered by the appellant under this head.  Although the earnings history of the appellant did not indicate that he had a history of earnings at around $32,000, which was a statistical figure used by the experts for a person with slightly better educational qualifications, it must be borne in mind that the appellant was just starting out and his historic earnings reflected the situation when he was just entering his twenties.  The level of income referred to by the experts seems to me to be not unrealistic.  A person in the occupation of the appellant with his work ethic should be able to achieve such earnings.  He apparently expected to earn perhaps something over $35,000 in the period immediately preceding the trial.  Of course, his ability to continue to earn at such a level is thrown in doubt by the medical opinions accepted by the judge.  The substantial difference between the experts as to expected loss in future income appeared to relate to their differing treatment of labour market contingencies.  Mr. Gosling essentially took a more pessimistic view concerning labour market contingencies than did Mr. McKellar.

[24] In this case, I consider the approach of Mr. Gosling to be preferable because of the very long span of time left in the expected working life of the appellant.  The length of time to be considered in my view mandates a fairly conservative approach to any prediction of future loss.  However, I do not perceive, as I noted, how the judge arrived at the figure he did.  I view as erroneous his treatment of the educational level of the appellant.  Perhaps this led him to very heavily discount the loss predictions.  I consider that, if one utilizes the approach suggested by Mr. Gosling as a helpful starting point, having regard to the facts in this case, a reduction of the magnitude reflected in the award of $120,000 under this head is not justified.  I think it is significant that this appellant has a very good work ethic and there was and is wide scope for employment opportunities in the construction field through the extended family of the appellant.  Opportunities for advancement in, and indeed continuation by the appellant in this field of endeavour are now considerably attenuated as a result of the accident.  The appellant’s back problem is likely to persist, based on the medical evidence, and there is a very real narrowing of future opportunities for him.  Thus, this injury appears very likely to result in a diminution of career options and, consequently, a long term earnings impairment.

[25] The work ethic of the appellant has to be taken account of in an assessment of a proper figure for future loss.  His positive work ethic suggests that, but for the accident, the appellant might have looked forward to earning more than the statistical average figures posited by the experts.  Thus, one could suggest his loss could be greater over his future earning years than suggested by the statistical figures.  His attitude to work, however, also means that he may in fact do better than expected in future despite his injury because he will not be as affected as might be the case with a person with a less robust work ethic.  This consideration would suggest a lesser loss than the statistical figures relied upon by the experts.  While the defendant tortfeasor must take the appellant as he finds him concerning educational level, he also in this case gets the benefit of a plaintiff with a positive work attitude.  These factors are to be taken account of and balanced in arriving at a fair assessment of damages for future loss.  Doing the best I can with the evidence and adopting a cautious approach because of the long time span, I am of the view that some discount from the amount resulting from the approach of Mr. Gosling would result in an appropriate award under his head of damages.  A discount ranging around $75,000 to $80,000 seems to me justifiable because of the work ethic of the appellant.  This yields a figure of about $225,000 for future loss and this is the amount I would substitute for the figure set by the trial judge.  I would accordingly allow the appeal in these terms and award the sum of $225,000 under the head of future loss.

BC Personal Injury Claims and Circumstantial Evidence

If you are injured in BC through the actions of another but can’t gather any direct evidence proving that the other party is at fault can you still succeed in a claim for damages?  The answer is yes a lies in circumstantial evidence.
Direct evidence is evidence that stands on its own to prove a fact :”I saw the Defendant get drunk, get behind the wheel speeding like a maniac and hit the pedestrian“.  Circumstantial evidence, on the other hand, is evidence that proves a fact by an inference “the defendant had 12 drinks on his bar tab and at the scene of the accident he was found unconscious in the driver seat, smelling of alcohol, in front of the pedestrian who was found injured in the crosswalk“.  In the first example there is direct evidence of drunk driving causing injury, in the second example there is evidence that can lead to the reasonable conclusion of drunk driving causing injury.
Negligence in BC Personal Injury cases can be found wholly on circumstantial evidence and today reasons were released by the BC Court of Appeal dealing with the law of circumstantial evidence in an ICBC claim.
In today’s case, Michel v. Doe and ICBC, the Plaintiff was “seriously injured by an object that had come off a loaded logging truck being driven by an unidentified driver.”   The Plaintiff sued for damages.   Since the driver left the scene of the injury and could not be identified the Plaintiff could not prove what specifically, if anything, the driver did wrong in contributing to this object coming off the logging truck.  The lawsuit was dismissed at the trial level due to a lack of evidence of negligence.  The Plaintiff appealed.
The BC Court of Appeal dismissed the appeal but in doing so discussed the law dealing with circumstantial evidence in BC personal injury claims.  The highlights of this discussion are reproduced below:

[21]          In Marchuk v. Swede Creek Contracting Ltd. (1998), 116 B.C.A.C. 318, this Court observed that Fontaine had not modified the underlying principles governing the use of circumstantial evidence with respect to liability in negligence, and emphasized that the burden of proof remained on the plaintiff:

[9]        The Supreme Court of Canada has recently said that the Latin maxim res ipsa loquitur should be abandoned as confusing and unhelpful in cases involving circumstantial evidence of negligence:  Fontaine v. Insurance Corporation of British Columbia (1997), 156 D.L.R. (4th) 577.  That case was decided after the judgment at trial in the case at bar.

[10]      While the Supreme Court was critical of the Latin maxim, the underlying principles governing the use of circumstantial evidence in determining liability for negligence were not modified.  The issue becomes simply whether, after weighing the whole of the direct and circumstantial evidence, the plaintiff has established a prima facie case of negligence against the defendant, and that inference has not been negated by the defendant’s evidence.  The legal burden of proof, of course, remains on the plaintiff throughout.

[22]          The appellant argues that the “question which must be asked and which the learned trial judge did not ask is whether, in the particular circumstances established by the evidence, the accident would ordinarily occur without negligence.”  However, this question was posed in Fontaine in the context of the Court’s discussion regarding the requirements for the application of res ipsa loquitur during the course of its “obituary” for the Latin maxim (Gillis v. B.C. Transit, 2001 BCCA 248 at para. 4, 88 B.C.L.R. (3d) 163).  Nonetheless, it is arguable that despite the reformulation given in Fontaine, this question remains relevant to the issue of whether a prima facie case of negligence has been made out.  In Fontaine itself, in concluding that the circumstantial evidence present did not discharge the plaintiff’s onus, the Court stated “it should not be concluded that the accident would ordinarily not have occurred in the absence of negligence” (paras. 31-32).  Moreover, as previously noted, Marchuk held that despite its criticism of res ipsa loquitur, the Court in Fontaine had not actually modified the underlying principles governing the use of circumstantial evidence in determining liability for negligence.  Further, in Lemaire v. Ashabi et al, this Court upheld the trial judge’s decision finding negligence, a decision which referenced Fontaine, stating with respect to the trial judge’s finding of prima facie negligence that:

[7]        She first considered whether the prima facie inference of negligence could be drawn.  She cited (at para. 56) United Motors Service Inc. v. Hutson et al, [1937] S.C.R. 294, for the principle that:

… the fact that an operation is under the control of the defendant coupled with the fact that the accident is such that in the ordinary course of things it would not happen if those having the management use proper care, is sufficient to establish a prima facie case of negligence.

[23]          In this case, the trial judge held that he was unable to infer from the evidence that a breach of the standard of care had occurred.  In my view, the appellant’s argument that the standard was breached “because it is obvious that a rock that might foreseeably dislodge and pose a hazard did in fact get dislodged and injured [the appellant]” is a misinterpretation of the trial judge’s formulation of the standard of care.  Instead, the judge concluded that the fact that the rock came off the logging truck was not, by itself, sufficient to establish that the standard of care, as he had stated it, was breached.

[24]          The trial judge held that log haulers owed a duty of care to people such as the appellant, the standard of which was “that they must diligently perform a complete inspection of their vehicle and their load to identify and remove debris or any foreign matter that might foreseeably dislodge and pose a hazard to the person or property of any member of the public who might foreseeably be harmed by such debris falling from the vehicle or load.”  Having defined the standard of care in terms of a prudent inspection, the trial judge considered the evidence of how the rock had come off the truck to determine whether the rock ought to have been discovered by such an inspection.  He concluded that he was unable to determine where the rock had probably been located in the load, and accordingly, was unable to find that it probably would have been discovered by a proper inspection.  In other words, the possibilities of non-negligence (a prudent and diligent inspection in which the rock nevertheless eluded detection) and of negligence (no inspection or a negligent one) were equally consistent with the available evidence.

[25]          In my view, this case is analogous to the application of Fontaine in Hall v. Cooper Industries, Inc., 2005 BCCA 290 at para. 59, 40 B.C.L.R. (4th) 257: “[the appellant] did not establish aprima facie case of negligence which caused the accident.  Therefore the case never reached the point where [the respondent] was required to produce ‘evidence to the contrary.’”

[26]          The trial judge’s conclusion that the evidence was equally consistent with the possibility that the rock was “somewhere in the middle of the load but near the front, where it could have eluded detection without negligence” as with the possibility that it was somewhere it ought to have been discovered, is consistent with the trial judge having considered the question of whether the accident would ordinarily occur without negligence.  His conclusion was that the accident was equally as likely to have occurred without negligence as with it.

Medical Records and ICBC Injury Claims

ICBC Injury Claims tend to be record heavy.  It is important to understand the types of records that are typically used in ICBC claims and how these records can be used.
One of the most frequent records reviewed and used by lawyers involved in these cases are clinical records of treating physicians.  These records can be a rich source of information documenting a person’s complaints of injury, course of improvement, medical advice prescribed and other useful information.
When ICBC claims proceed to trial these records are often put to some use by the lawyers involved.  The extent to which each lawyer can use the records varies.  For example, a Plaintiff’s lawyer usually can’t use the records to corroborate the Plaintiff’s evidence at trial as doing so can offend the rule of bolstering a clients credibility by leading evidence of ‘prior consistent statments’.
ICBC Defence lawyers, however, often use prior recorded statements when cross-examining a Plaintiff with respect to injuries sustained in an ICBC claim.  This is one of the most frequent uses made of clinical records in ICBC claims.
It is important for lawyers and clients alike to understand the use that can be made of clinical records at both examinations for discovery and trial in their ICBC Injury Claims.
Reasons for judgment were released today by the BC Court of Appeal shedding light on this topic.   In today’s case the Plaintiff was awarded damages as a result of a 2005 motor vehicle collision.  The defendant appealed claiming that the damages awarded were excessive in the circumstances and that the trial judge made several errors.  In dismissing the appeal the BC Court of Appeal noted that while some errors were made none of these prejudiced the Defendant in the trial.  In doing so the court made some comments on the use to which clinical records can be made at trial.  I reproduce the highlights of this discussion below:

Medical Records Issues

[7]                During cross-examination of the plaintiff’s family physician, Dr. Dwyer, counsel for the defendant asked to have his clinical notes admitted as an exhibit.  Counsel stated that the defendant intended to rely on the absence from the notes of any notation of a complaint by the plaintiff related to limitations on his work capacity, particularly with respect to script writing.  Dr. Dwyer testified that he would have noted such complaints if they had been made to him.  Counsel argued that the clinical notes were admissible as business records under s. 42 of the Evidence Act, R.S.B.C. 1996, c. 124.  The trial judge questioned the admissibility of the portions of the notes that recorded the plaintiff’s complaints of symptoms.  He distinguished between the doctor’s notes of the results of his physical examination of the plaintiff and notes of the plaintiff’s subjective complaints to the doctor.  The trial judge considered the plaintiff’s statements to be hearsay.  He questioned the evidentiary value of the records apart from the doctor’s testimony, pointing out that the doctor was entitled to refer to his notes to refresh his memory and “there’s nothing preventing you from exploring all of these questions with this witness.”

[8]                The trial judge summarized his conclusions as to the attempted use of the notes to discredit the plaintiff’s account of symptoms in these terms (at paras. 35 to 37):

I accept Mr. Bancroft-Wilson’s evidence in regard to the onset of the headaches, and their intensity, frequency, and endurance.  Efforts to discredit him with alleged inconsistencies in doctors’ clinical notes were, in my view, not successful.  It must be borne in mind that the primary objective of physicians’ clinical notes is to refresh their own memories as to what transpired during a clinical examination, for the purposes of medical treatment.  These notes are not made for investigative and litigation purposes.  If this were the purpose then it would, in my opinion, be important for physicians to ensure that they have accurately recorded full and detailed accounts of what a patient said during a clinical visit and then have the patient verify the accuracy of the notes.

Physicians are not investigators.  They are neither trained to accurately record what a person says nor to draw out a fulsome account for litigation purposes.  The use of clinicians’ notes, made hastily during a clinical visit and never reviewed for accuracy by the patient, may operate unfairly to the patient as plaintiff or witness.  It should also be borne in mind that when a patient sees his or her physician with a complaint of significant pain, the circumstances are far less from ideal for obtaining full and accurate information.

I do not suggest by any of the foregoing that it is impermissible to use clinical notes to challenge a plaintiff’s credibility, but the frailties inherent in such recordings should be recognized. In the instant case, I find that the clinician’s notes do not have sufficient accuracy and reliability to undermine the plaintiff’s evidence where the notes allegedly differ from the plaintiff’s testimony at trial.

[Emphasis added]

[9]                The defendant contends that the trial judge erred in law by refusing to admit the clinical notes as admissions against interest.  This Court in Samuel v. Chrysler Credit Canada Ltd., 2007 BCCA 431, 70 B.C.L.R. (4th) 247, has recently confirmed that statements made by a plaintiff to doctors and recorded in clinical notes are hearsay and not admissible by the plaintiff to prove the truth of the symptoms complained of to the doctors.  The Court in Samuel was not concerned with the exception to the hearsay rule for admissions against interest.  Statements made by a plaintiff to doctors may be admissible under that exception when tendered for that purpose by the defendant or other party opposed in interest to the plaintiff; see Cunningham v. Slubowski, 2003 BCSC 1854 at para. 14.

[10]            I do not read the trial judge’s reasons as categorically rejecting the admissibility of clinical notes as a general proposition.  Rather he addressed the evidentiary weight of the notes.  I think that he went too far in the sentence underlined above when he stated that clinical notes are not made for investigative and litigation purposes.  That overlooks the fact that all of the medical doctors who testified, apart from Dr. Dwyer, were retained to provide independent medical opinions for the purposes of litigation.  Complaints of symptoms by a plaintiff to doctors must be supported by confirmation of those symptoms by the plaintiff’s testimony in court to provide an evidentiary foundation for the medical opinions; see, for example, Lenoard v. B.C. Hydro & Power Authority (1964), 50 W.W.R. 546 (B.C.S.C.).  Nonetheless, the accuracy of the doctors’ record of complaints is important to their opinions, and to that extent accuracy has obvious litigation implications.

[11]            While clinical records may be admissible as a record of admissions against interest in appropriate circumstances, in the instant case the defendant seeks to rely on the clinical notes to support the inference that the plaintiff did not complain to the doctor of the symptoms he alleges because the notes do not contain any reference to those symptoms.  In effect, the defendant is contending for an admission by omission.  In my view, that overstretches the limits of the admissions exception in the circumstances here.  The notes standing alone are of little if any weight for the purpose intended by the defendant and I think that the trial judge adopted the proper course in limiting their use to refreshing the memory of the doctors during their testimony. 

[12]            Viewing the trial judge’s reasons as a whole on this aspect of the case, I am satisfied that he did not reject entirely the admissibility of the clinical notes and he treated their significance as a matter of weight in the context of the doctors’ testimony.  For example, the trial judge observed that Dr. Dwyer’s notes supported the plaintiff’s complaint of back pain within four days of the accident.  The judge advised counsel for the defendant that she could renew her application to admit the notes later and counsel did not take up that opportunity.  I think that any evidentiary value attached to the notes was merged in the testimony of the doctors and there was no prejudice to the defendant arising from their formal inadmissibility as admissions against interest.

 

More on BC Personal Injury Claims and Litigation Privilege

I’ve written previously on BC Personal Injury Claims and Litigation Privilege and today reasons for judgment were released by the BC Supreme Court further considering this topic.
In today’s case (Semkiw v. Wilkosz) the Plaintiff was the widow of a person who was allegedly killed as a pedestrian in a serious motor vehicle collision in Vernon, BC in 2006.
The driver of the allegedly offending vehicle was operating a vehicle owned by U-Haul Co. (Canada) at the time of the crash.  Following the crash the driver gave a statement to a a “U-Haul adjuster” and subsequent to this she showed a copy of this statement to a lawyer that she consulted with and to the RCMP in Calgary.
The Plaintiff’s lawyer asked for a copy of this statement and the Defendants lawyer in the injury lawsuit refused to produce it claiming that it was subject to litigation privilege.
The Plaintiff also asked for a copy optometrists records relating to the eyesight of the alleged driver and lastly asked for photographs and measurements of the van allegedly involved in this collision taken by a professional engineer instructed by U-Haul.  Production of these materials was also opposed on the basis of litigation privilege.
In rejecting the claim for privilege Mr. Justice Rogers of the BC Supreme Court summarize and applied the law as follows with respect to the statement to the insurance adjuster (so that the following excerpt makes sense Ms. Aisler is the ‘U-Haul adjuster’ and Ms. Wilkosz is the alleged driver):

[12]            It is evident from this list that Ms. Aisler had several goals in mind when she asked Ms. Wilkosz to give her statement.  The current litigation is not clearly dominant among them.  In fact, it appears that Ms. Aisler was as concerned about whether Ms. Wilkosz would ask for payment of no?fault accident benefits as she was about instructing some lawyer that U?Haul might eventually retain or preparing for litigation being advanced by the third party to the accident.  I cannot, on Ms. Aisler’s evidence relating to the purposes for which the Wilkosz statement was obtained, conclude that this litigation was the dominant reason for getting it.

[13]            Further, what a party actually does with a document and how it treats that document before its production is demanded can sometimes be as good an indicator of privilege as anything that the party may decide to assert after that demand is made.  In this case, Ms. Wilkosz’s interaction with the police officer in Calgary clearly demonstrates that U?Haul was quite content for her to have and keep and distribute a copy of her statement to whomever she chose.  Ms. Wilkosz was not, apparently, under any instruction from U?Haul to not show the statement to other persons.  If she was under such instruction, one would have thought that U?Haul would have adduced evidence of such in this application, but it did not.  Furthermore, Ms. Wilkosz made it clear that she had shown her statement to her lawyer Mr. Yuzda.  If Ms. Aisley had truly obtained that statement in order to protect U?Haul from, among other things, Ms. Wilkosz’s claims for accident benefits it is unlikely in the extreme that Ms. Aisley would have allowed Ms. Wilkosz to take the statement off to show to a lawyer who might well advise her on how to successfully prosecute such a claim.

[14]            In my opinion, the fact that U?Haul gave a copy of the statement to Ms. Wilkosz and that it did not restrict her use of that statement demonstrates that U?Haul’s dominant purpose in obtaining the statement was not to instruct its own counsel with respect to the accident.  If that had been U?Haul’s dominant purpose, common sense dictates that U?Haul would have kept the statement to itself, or if it let Ms. Wilkosz have a copy it would have done so after giving her very strict instructions limiting her dissemination of it.

[15]            The defendants’ claim of litigation privilege over the Wilkosz statement must fail.  Because the defendant has chosen to assert a single basis for its claim of privilege for all of its documents, the failure of its claim with respect to that one document means that its claims for all of the documents must likewise fail.  The defendants will be required to give production of all of the documents pre?dating September 21, 2007 and for which they claimed privilege in Part III of their supplemental list of documents.  It follows that Ms. Wilkosz need not give evidence in her examination for discovery concerning the circumstances in which she gave her statement to U?Haul.

With respect to the optometrists records:

[16]            Ms. Wilkosz’s visual acuity is obviously an issue in this case.  She has filed no material to suggest that records relating to her eyesight contain any embarrassing, sensitive, or confidential information that is not relevant to these proceedings.  She has not, therefore, met the criteria for insisting that these records be sent first to her counsel for review.  The plaintiff is, therefore, entitled to receive the records directly from the professionals involved in Ms. Wilkosz’s eye care.  Plaintiff’s counsel has offered her undertaking to deliver those records to defence counsel immediately upon receipt.  Defence counsel has, for no good reason I can discern, been reluctant to accept that undertaking.  In the result there will be an order that defence counsel accept the undertaking.  There will be an order that Ms. Wilkosz sign authorizations for release of her eye care records and delivery of those records to plaintiff’s counsel.  She must sign those authorizations and see that they are delivered to plaintiff’s counsel within seven days of the release of these reasons.  Defence counsel will deliver the signed authorizations to plaintiff’s counsel immediately upon receipt.

and lastly with respect to the engineers materials:

 

[18]            Ms. Aisley’s affidavit does not describe Mr. Gough’s involvement in the case beyond saying that she understood that he was to provide expert advice and that he took a look at the U?Haul van and tried to look at another vehicle involved but was rebuffed by its owner.  Mr. Gough’s affidavit describes his activities concerning the U?Haul van and the site, but does not illuminate his purpose.  Specifically, Mr. Gough does not assert that he examined the van and the site for the purpose of preparing an expert report or for the purpose of assisting counsel in preparing for this or any other litigation.  On Mr. Gough’s evidence, the most that I can conclude is that U?Haul asked him to have a look at the van and the accident scene and to record his observations.  There are no grounds on which U?Haul can claim that Mr. Gough’s work is protected by privilege.

[19]            Mr. Gough’s observations are, of course, relevant to issues raised in the lawsuit.  The plaintiff has asked Mr. Gough to produce the records of his observations but he has refused.  This is a proper circumstance for an order under Rule 26(11) that Mr. Gough deliver to all parties of record a copy of all photographs and records in his possession relating to his examination of the U?Haul van and of the accident scene.

Personal Injury Claims and Privacy – Can ICBC access your Facebook Account?

If you pursue a personal injury claim in the BC Supreme Court you will be bound by the Rules of Court with respect to production of relevant documents.
With our ever-expanding use of technology, more and more documents may become relevant in Injury Litigation.  So, can computer records ever be relevant in personal injury claims?  
Reasons for judgement were released today by the BC Supreme Court (Bishop v. Minichiello) dealing with this issue.  In today’s case the Plaintiff allegedly suffered a brain injury as a result of the negligence of the defendants.  The Defendants wished to analyze the Plaintiff’s computer hard drive to ‘determine the period of time the plaintiff spends on Facebook between eleven at night and five in the morning‘.  The Plaintiff refused to produce his computer hard-drive and this resulted in a Court motion seeking an order compelling the Plaintiff to do so.
Mr. Justice Melnick granted the motion and ordered that ‘the parties agree on an independent expert to review the hard drive …to isolate and produce to counsel…the information sought or a report saying that the information sought is not retrievable.’.
In reaching this conclusion Mr. Justice Melnick engaged in the following analysis and application of the law:

IV. ANALYSIS

[46]            Electronic data stored on a computer’s hard drive or other magnetic storage device falls within the definition of “document” under R. 1(8) of the Rules of CourtIreland at para. 6. 

[47]            Rule 26(1) requires disclosure of documents relating to any matter in question in the action.  The decision of whether to grant an order requiring production under R. 26(10) is a discretionary one: Park at para. 15.  The court has used its discretion to deny an application for the production of documents in the following two circumstances: firstly, where thousands of documents of only possible relevance are in question; and secondly, where the documents sought do not have significant probative value and the value of production is outweighed by competing interests such as confidentiality and time and expense required for the party to produce the documents: Park at para. 15.  Additionally, privacy concerns should be considered in a determination under R. 26(10), where the order sought is so broad it has the potential to unnecessarily delve into private aspects of the opposing party’s life: Park at para. 21.

[48]            Disclosure in the civil litigation context is largely informed by an inquiry into relevance and probative value.  Relevance should be granted a broad scope: Peruvian Guano at 62.  Relevancy is to be determined upon a description of the nature of the documents sought and a reasonable interpretation of the pleadings: Boxer at 359. 

[49]            Relevant to this particular application are the values enshrined in s. 8 of the Charter – the right to be secure against unreasonable search and seizure.  Rule 26(10) confers no power to make an order that is really authorization for a search: Privest Properties Ltd. at para. 38.

[50]            Metadata is information recorded or stored by means of a device and is thus a document under R. 1(8): Desgagne at para. 29.  Metadata is a report of recorded data that is generated by computer software.  It is not something created by the user; rather, it is based on what the user does with their computer.  In both Park and Desgagne, it was held the threshold of relevance had not been met to order production of records of the frequency and duration of computer use.  However, Mr. Justice Myers in Park stated at para. 42 that he did not mean to say that hard drives and other electronic documents need never be produced under R. 26.  Thus, in the appropriate case if the threshold of relevance is met, a hard drive may require production.

[51]            This threshold was found to be met in Chadwick.  Despite agreeing with the plaintiffs that this was a case in which the hard drive was to be regarded as a file repository and not a document itself, Mr. Justice Myers held that such a distinction was not to be determinative of the application. 

[52]            Mr. Justice Bauman, for the Court of Appeal, held that leave to appeal the order should not be granted and the application was dismissed.  The Court of Appeal stated that while an appropriate case may give rise to important issues such as privacy, solicitor-client privilege, expense, and time, this was not that case as Mr. Justice Myers’ order was of narrow scope.

[53]            Similarly, the application at hand is of narrow scope.  The defence wishes to have the plaintiff’s hard drive of his family computer produced and analyzed to determine the periods of time the plaintiff spent on Facebook between eleven at night and five in the morning, each day.

[54]            Examination for discovery evidence of the plaintiff’s mother confirms that the plaintiff is the only person in the family using the family computer between those hours.  The plaintiff suggests that, at times, friends may use the computer once he logs onto Facebook.  But that is an evidentiary issue for trial.  The issues of privacy and solicitor-client privilege are basically resolved as only the plaintiff has the password to his Facebook account and he has not used this account to converse with his counsel.

[55]            It is true the Bishop family computer is more akin to a filing cabinet than a document; however, it is a filing cabinet from which the plaintiff is obligated to produce relevant documents.  This sentiment was approved in Chadwick.  Simply because the hard drive contains irrelevant information to the lawsuit does not alter a plaintiff’s duty to disclose that which is relevant.  If there are relevant documents in existence they should be listed and produced (or simply listed if they are privileged). 

[56]            The defence argues that this case is distinguishable from Baldwin and that the information sought is relevant.  The plaintiff advised Dr. Zoffman that his sleep varies with the time one of his friends goes to bed.  This is because he spends a substantial amount of time on Facebook chatting with this friend.  The plaintiff alleges that ongoing fatigue is preventing him from maintaining employment and thus his late-night computer usage is relevant to matters at issue in this lawsuit.

V. CONCLUSION

[57]            The information sought by the defence in this case may have significant probative value in relation to the plaintiff’s past and future wage loss, and the value of production is not outweighed by competing interests such as confidentiality and the time and expense required for the party to produce the documents.  Additionally, privacy concerns are not at issue because the order sought is so narrow that it does not have the potential to unnecessarily delve into private aspects of the plaintiff’s life.  In saying that, I recognize the concern of the plaintiff that to isolate the information the defence does seek, its expert may well have consequent access to irrelevant information or that over which other family members may claim privilege.  For that reason, I direct that the parties agree on an independent expert to review the hard drive of the plaintiff’s family computer and isolate and produce to counsel for the defendant and counsel for the plaintiff the information sought or a report saying that the information sought is not retrievable, in whole or in part, if that is the case.  I grant liberty to apply if counsel cannot agree on such an independent expert or if other terms of this order cannot be agreed. 

[58]            At the conclusion of the hearing on March 5, having been made aware that the passage of time was critical because of the potential for the memory of the plaintiff’s family computer to be “overwritten” with ongoing use, I directed that within two weeks of that date, an expert engaged by the plaintiff’s counsel, at the expense of the defence, produce two copies of the hard drive to be deposited with the court pending this ruling.  One of those copies should be used for the analysis I have now ordered.  The other copy should remain with the court as a backup to be accessed only with further order of the court. 

This case should serve as a reminder that technology is rapidly changing the potential scope of document production in Injury Litigation.  Lawyers and Plaintiff’s advancing BC Injury Claims need to be aware of the scope of documents that may be relevant and when doing so should not be so quick to overlook the potential relevance of electronically stored documents not only on a computer hard drive but also those that can be found on social networking sites such as Twitter, MySpace and Facebook.

 

Special Costs Awarded for 'Reprehensible' Behaviour by Law Firm

In reasons for judgement released today (Chudy v. Merchant Law Group) the BC Court of Appeal upheld a trial judge’s award for special costs.
The Plaintiff was involved in a serious motor vehicle collision in 1995.  The Plaintiff hired a lawyer and ultimately a $860,000 settlement was reached.
A fee dispute arose after this settlement and litigation ensued.   At trial the Plaintiff’s were granted judgement in the sum of $300,404.17 against the law firm.  This award included a punitive damages award of $50,000 finding that the law firm acted in a ‘malicious, oppressive and high-handed‘ manner to their client.
The lawfirm appealed for various grounds.  In a split decision handed down several months ago, the BC Court of Appeal dismissed the major grounds of appeal but did reduce the over-all judgement by $27,413.58.
Today’s appeal provided supplemental reasons dealing with the narrow issue of whether the trial judge was correct in awarding special costs against the law firm.  In upholding the award, the Court of Appeal said the following with respect to the law of ‘special costs’ and to the behaviour of the Defendant Law Firm:

[6]                The trial judge discussed the claim for special costs at some length at paras. 216 to 261 of his reasons for judgment which are indexed as 2007 BCSC 279.  It is not disputed that he correctly stated the applicable law: 

[255]    In Garcia v. Cresbrook Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.) [Garcia], the Court of Appeal considered the type of conduct required for an award of special costs under the Rules of Court, B.C. Reg. 221/90.  After reviewing decided cases and the relationship of “special costs” to the concept of “solicitor-and-client costs”, Lambert J.A. (for the Court) stated at ¶ 17:

Having regard to the terminology adopted by Madam Justice McLachlin in Young v. Young, to the terminology adopted by Mr. Justice Cumming in Fullerton v. Matsqui, and to the application of the standard of “reprehensible conduct” by Chief Justice Esson in Leung v. Leung in awarding special costs in circumstances where he had explicitly found that the conduct in question was neither scandalous nor outrageous, but could only be categorized as one of the “milder forms of misconduct” which could simply be said to be “deserving of reproof or rebuke”, it is my opinion that the single standard for the awarding of special costs is that the conduct in question properly be categorized as “reprehensible”.  As Chief Justice Esson said in Leung v. Leung, the word reprehensible is a word of wide meaning.  It encompasses scandalous or outrageous conduct but it also encompasses milder forms of misconduct deserving of reproof or rebuke.  Accordingly, the standard represented by the word reprehensible, taken in that sense, must represent a general and all encompassing expression of the applicable standard for the award of special costs.

[7]                Davies J. stated his conclusion on the costs issue thus: 

[257]    I am satisfied that the conduct of the Merchant Law Group in this case was reprehensible within the meaning attributed in Garcia.  The conduct and actions of the Merchant Law Group would be deserving of rebuke in an ordinary commercial transaction.  In the context of litigation involving its own clients and the integrity which the Court and the public are entitled to expect from those who are privileged to be members of the legal profession, it was both outrageous and scandalous.

[258]    I order that the plaintiffs recover special costs from the Merchant Law Group from the commencement of this litigation and throughout, including all costs related to the third party proceedings brought against Mr. Shaw.  Those proceedings were, in my view, not only devoid of evidentiary substance but also unnecessarily added to the length of these proceedings.

[259]    Any costs that were paid to the plaintiffs pursuant to previous orders of the Court shall, of course, be deductible from the award of special costs.

[8]                Before stating the above conclusion, the judge described the conduct of the appellant law firm.  In the court’s view, the bad conduct began with a pre-litigation letter from Mr. Merchant to the Law Society of British Columbia dated 2 December 2003 in which he falsely claimed for the appellant a solicitor’s lien on the Chudy file.  He also prepared a fictitious fee account to the Chudys.  This “foreshadowed the way in which the Merchant Law Group was prepared to defend against the plaintiffs’ claims” (para. 251).  In our opinion, this did not amount to a colouration of the judge’s assessment of litigation conduct.  It was properly seen as an attempt by the appellant to put a chill on the appellant’s unsophisticated former clients.  This conduct was not a factor in the assessment of punitive damages.  Rather, the award of punitive damages was based on an earlier breach of fiduciary duty.  In these circumstances, an improper attempt by a legal professional to discourage a claim against that professional, although done before commencement of the action, is properly taken into account when considering litigation conduct.  The trial judge’s conclusion at para. 225 that Mr. Merchant’s evidence about the draft account and an accompanying letter to the respondents “was a disingenuous attempt to cover up the fact that he did not want the plaintiffs to have the file and that he was prepared to go to unethical lengths to avoid delivering it to them” is unassailable.  It was bad enough that Mr. Merchant improperly claimed the lien.  But he exacerbated that conduct by offering an explanation at trial that was contrived.  That was litigation conduct properly considered on the claim for special costs. 

[9]                The appellant has not demonstrated error on the part of the trial judge in his conclusion that the conduct of the appellant during this litigation, both pre-trial and during the trial, was reprehensible as that term is used in Garcia.  The evidence abundantly supports the conclusion.  The appellant brought pre-trial motions that were without merit; it brought a specious application, based in part on false evidence, challenging the jurisdiction of the court to try the matter; it avoided a peremptory trial date by adding Mr. Shaw as a third party but did not require him to file a defence, did not examine him for discovery, did not cross examine him at trial with respect to its allegations against him, and in a lengthy written submission at the end of the trial, did not refer to its claim over against Mr. Shaw (the trial judge tersely dismissed the third party claim); it brought a motion (returnable on the date scheduled for the hearing of a R. 18A application for a summary trial brought by the respondents) for removal of the respondents’ counsel on ridiculous grounds, a tactic which the trial judge at para. 236 stated, with the benefit of his unique perspective of the appellant’s entire conduct, “was not only without merit but was calculated to prevent the Rule 18A application from proceeding as ordered”; on the hearing of the respondents’ R. 18A motion, Mr. Merchant produced a large number of documents, not previously disclosed and not sworn to, in support of his position that the action could not be determined on a summary basis; and, finally but of most significance, Mr. Merchant offered evidence at trial that the trial judge determined was false and misleading.

[10]            As to the final point, the respondents refer to Brown v. Lowe, 2002 BCCA 7, in which Southin J.A. said (at para. 149):  “To give false evidence relating to the matters in question at any stage of the proceedings is a grave matter.  By “false”, I do not mean “erroneous”; I mean knowingly untrue.”  The falsity of Mr. Merchant’s evidence is commented on by the trial judge at several points in his judgment and is referenced by the majority judgment in this court.  There is no need to particularize it here.

[11]            The evidence as a whole clearly supports the conclusion of the trial judge that the legal basis for the awarding of special costs was established in this case. 

BC Personal Injury Claims and the Duty to Mitigate

If you are injured in BC through the fault of another and advance a tort claim you have a duty to mitigate your damages.  What this means is you have a duty to take reasonable steps to minimize your losses.  For example, if you are capable of getting back to work you ought to do so, or if your doctor prescribes a rehabilitation program you should take reasonable steps to follow this advice.
If you fail to mitigate your damages the value of your damages may be reduced accordingly.  In other words, if the Court finds that you unreasonably failed to follow a rehabilitation program and doing so would have improved your injuries by 50% the value of your Injury Claim could be reduced by 50%.
But what if you can’t afford to follow your doctors advice?  What if the medications prescribed are too expensive or if the physiotherapy costs are beyond your budget, surely this can’t amount to a failure to mitigate, can it?  Unfortunately it can if you have ICBC No Fault Benefits available to you and you fail to apply for and receive these.  Section 83(2) of the Insurance (Vehicle) Act reads as follows:
(2) A person who has a claim for damages and who receives or is entitled to receive benefits respecting the loss on which the claim is based, is deemed to have released the claim to the extent of the benefits.
What this means is that if you could recieve ICBC rehabilitation benefits and fail to apply for these the person that injured you can successfully argue that you failed to mitigate your damages.
Reasons for judgement were released today (Smith v. Tedford) highlighting this fact.  In this case Mr. Justice Grist made the following observations:

[3]                Once pled as an issue by the defendant, damages will be limited if the defendant can show the plaintiff failed to take steps a reasonable person would have taken to mitigate or lessen the loss. In the case of a personal injury trial, this would include recommended treatment or therapy if pursuing the treatment is a reasonable course in the circumstances and can be proven to likely have had efficacy.

[4]                In my view, the financial circumstance of the plaintiff falls into the overall consideration of reasonableness. If the plaintiff is of modest means, the expensive therapy may be a significant factor. The fact that such a plaintiff has been denied coverage for the therapy under the universal motor vehicle coverage provided under Part 7, is in my view, a factor for consideration when failure to mitigate of this sort is alleged. This coverage, as being ordinarily available to those injured in motor vehicle collisions, may well be assumed by a jury hearing such a case. Therefore, where there has been a request for coverage, the response becomes relevant.

[5]                This is not a case of putting ICBC on trial.  It is a matter of responding to a defence issue by reference to the plaintiff’s resources and whether it was reasonable to pursue the recommended treatment. Further, a full response to the issue is not necessarily made simply by the Plaintiff indicating a lack of resources in her evidence. As here, and as it happens in many cases, the plaintiff’s credibility is challenged and the ability to rely on confirmation is significant. Further, this is not a matter of determining Part 7 coverage. That is an issue for proceedings after a jury verdict and is quite independent, in my view, of this question.

In another ICBC Injury Claim released today (Job v. Blankers) Madam Justice Ker of the BC Supreme Court penalized a plaintiff for failing to mitigate her damages.  In this case the Plaintiff was found to have mild to moderate soft tissyue injuries and the non-pecuniary loss was valued at $25,000.  This award was then reduced by 10% for failure to mitigate.  In coming to this conclusing the Court made the following analysis:

[110]        In Antoniali v. Massey, 2008 BCSC 1085, Mr. Justice Preston addressed the issue of mitigation of damages at ¶29-50.  In that case, the defendants established that the plaintiff unreasonably failed to embark on an exercise program under the guidance of a personal trainer to rehabilitate herself and reduce or eliminate the continuing effect of her injuries.

[111]        The decision in Antoniali provides a helpful framework for assessing whether the defendant has established that the plaintiff has failed to mitigate her damages in this case.  In order then to conclude that Ms. Job’s damages should be reduced by the application of the principle that a plaintiff has a positive duty to mitigate her injuries, adapting that framework to the circumstances of the present case, I would have to find that the defendant has established:

1.      that a program of massage, physiotherapy and chiropractic intervention at a stage earlier than that undertaken by the plaintiff would have reduced or eliminated the effect of the injuries;

2.      that the reasonable plaintiff in Ms. Job’s circumstances would have followed such a program;

3.      that Ms. Job unreasonably failed to follow such a program and;

4.      the extent to which Ms. Job’s damages would have been reduced if she had followed such a treatment program.

[112]        Applying those factors to the circumstances of this case, I am satisfied the defence has established that Ms. Job failed to mitigate her injuries and symptoms.  Although Ms. Job may have had some financial reasons for failing to follow through on her doctor’s referrals, it appears from her evidence that her refusal to sign the appropriate documentation that ICBC sought contributed to her difficulties in that regard.

[113]        Dr. O’Neill’s evidence that the earlier treatment begins after an accident, the better the prognosis for the patient, and his observation that the plaintiff’s recovery may have been better had she attended earlier, satisfies me that had Ms. Job engaged in earlier treatment of her injuries as directed by her family physician in August and October 2007, she would have likely reduced the disability that she has experienced as result of the injuries.

[114]        I find that the plaintiff failed to take reasonable steps to mitigate the physical effects of the injuries sustained in the collision by failing to undertake the treatment regime recommended by her physician at the time the recommendation was made.  On the evidence of Dr. O’Neill, this was likely an impediment to achieving an earlier recovery.  Ms. Job had an obligation to assist in her recovery, even if it meant some initial financial hardship in terms of ability to pay for the treatments.  The burden of establishing a failure to mitigate is on the defendant.  I find that the defendant has met the onus in this case and has established that the plaintiff did not take all reasonable steps towards assisting in her recovery by failing to engage in treatment at the time her physician recommended she do so.

[115]        Accordingly, I reduce her award for non-pecuniary damages by 10% to reflect her failure to mitigate those damages in these circumstances.

[116]        In the end, there will be an award of $22,500 ($25,000 less 10% for failure to mitigate) in non-pecuniary damages.

ICBC Claims and Court 'Costs'

One important difference between the BC Supreme Court and BC Small Claims Court is the availability of court ‘costs’ to the winning litigant.
A winning party in the Provincial Court is usually awarded their disbursements, that is, the money it cost to bring the legal proceedings such as court filing fees, the cost of producing medical evidence etc.  The winner cannot, however, be awarded Tariff Costs (money to compensate the party for the various steps they took in the lawsuit).  This can be contrasted with the Supreme Court where a winning party can be awarded Costs and Disbursements.   This can make a big difference as a ‘costs’ award after a Supreme Court trial could easily exceed $10,000.
What if you bring your ICBC injury claim in Supreme Court but are awarded an amount of money in the Small Claims Court’s jurisdiction (currently up to $25,000).  Could you still get awarded Tariff Costs?  The answer is sometimes and the starting point is to look at Rule 57(10) which states:
(10)  A plaintiff who recovers a sum within the jurisdiction of the Provincial Court under the Small Claims Act is not entitled to costs, other than disbursements, unless the court finds that there was sufficient reason for bringing the proceeding in the Supreme Court and so orders.
So, the question is when is there sufficient reason for bringing an ICBC injury claim in Supreme Court when the claim ends up being worth less than $25,000?  Reasons for judgement were released today by the BC Supreme Court addressing exactly this question.
In today’s case the Plaintiff was awarded $20,000 in damages as a result of a 2005 BC motor vehicle collision.  In deciding that the Plaintiff is entitled to costs Mr. Justice Truscott summarized and applied the law with the following reasons for judgment:

[17]            The plaintiff Truong relies upon a decision of this court in Caldwell v. Maga [1997] B.C.J. No. 2166 (BCSC) where there were two plaintiffs, one being awarded $5,500 for damages and the other $4,500 for damages, both involved in a rear end accident.  This was at a time when the limit in small claims actions was $10,000.

[18]            Mr. Justice Drost referred to a previous decision of Mr. Justice Drake where he also dealt with two plaintiffs, who were each awarded under $10,000, and said in awarding them costs that the totality of the two judgments amounted to more than the small claims limit and they were entitled to costs.

[19]            Mr. Justice Drost determined to follow the reasoning of Mr. Justice Drake in that decision (Phosy & White v. Island Pacific Transport Ltd. [1996] B.C.J. No. 1037, (2 May 1996), Victoria Registry No. 95/1123).

[20]            I question the correctness of these two decisions as I tend to agree with defence counsel that taken to its logical conclusion that reasoning would mean that 26 claimants each with $1,000 claims would be entitled to sue in Supreme Court in one writ because the total would exceed $25,000, the present limit of small claims jurisdiction.

[21]            I consider it far more likely that the $25,000 limit of small claims jurisdiction should apply to each claim of each plaintiff no matter how many plaintiffs there might be.

[22]            However, I am obliged to follow the previous decisions of this Court which would probably entitle the two plaintiffs to sue in Supreme Court.

[23]            Apart from this, at the best of times I consider it difficult for any plaintiff’s counsel to estimate the appropriate range involved for personal injury claims of his clients at the initiation of the action.  The medical conditions of many plaintiffs continue to change following the initiation of the action as they continue to recover from their injuries or continue to suffer.

[24]            Here, even after Dr. Yong’s optimistic report of March 14, 2006, by January 26, 2008 he was still saying that it was likely that the plaintiff Truong would continue to suffer some degree of left shoulder pain probably for another one or two years.

[25]            The award to the plaintiff Truong of $20,000 is by itself less than the limit of jurisdiction in small claims of $25,000, but is not less by any large amount, and with the difficulty facing counsel of accurately estimating the range for a personal injury for his client at the initiation of litigation, knowing that if action is commenced in small claims his client will be limited to $25,000 no matter that the assessment might be in excess of $25,000, I am satisfied this plaintiff did have sufficient reason for bringing her claim in Supreme Court.

[26]            The plaintiff Truong will therefore have her costs of her claim at Scale B, only attributable to her claim.

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ERIK
MAGRAKEN

Personal Injury Lawyer

When not writing the BC Injury Law Blog, Erik is the managing partner at MacIsaac & Company, based in Victoria, B.C. He is also involved with combative sports regulatory issues and authors the Combat Sports Law Blog.

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