Tag: Berenjian v. Primus

Video Surveillance Erodes Personal Injury Claim; $4,000 Assessment for Modest Soft Tissue Injury


Although video surveillance is not always a useful tool in personal injury litigation, it sometimes is used effectively.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, illustrating such evidence assisting in challenging a personal injury claim.
In last week’s case (Berenian v. Primus) the Plaintiff was involved in a 2006 collision when he was travelling on foot and struck by the Defendant’s vehicle.  Although liability was disputed the defendant was ultimately found 100% at fault for the collision.
The Plaintiff sought damages for soft tissue injuries which he says took 18 months to clear.  He further advanced a claim that the injuries “have impacted his routine… because of them, he was not able to run in the usual fashion and it was in fact some time later that he was able to get back to his pre-accident routine“.
The Defendant “robustly disputed” this allegation and produced video evidence of the Plaintiff jogging in the month following the collision.  Mr. Justice Williams concluded that the injuries sustained in the collision were “fairly minor” and assessed non-pecuniary damages at $4,000.  In rejecting the claims of long-standing consequences from the injuries the Court provided the following comments:
50]         As part of its examination of the circumstances, the defence retained an investigator to observe the activities of the plaintiff. That resulted in video recordings being made; those were tendered in evidence at this trial. Those recordings show the plaintiff, on three separate occasions, leaving his downtown place of business and travelling on foot to the area of his residence in West Vancouver.
[51]         The first of those recordings was made on May 4. It shows the plaintiff as he slowly jogged from his place of business to his residence. On the way, he stopped and did some moderate physical exercise including push-ups. The elapsed time from his departure from his place of work to his arrival at his home was approximately 70 minutes.
[52]         Another recording was made the day following, May 5. Again, it shows similar activity; the elapsed time was 70 minutes.
[53]         The third observation was conducted on May 11. Again, the plaintiff is shown essentially jogging from his place of work to his home. The additional exercise was done along the way in the same fashion.
[54]         At trial, the plaintiff was confronted with this evidence, as well as testimony he had provided in the course of an examination for discovery, at a time when he was unaware of the recordings having been made. At the examination, he stated under oath that he had eased into his running gradually following the motor vehicle accident and had started running the entire distance from his place of work to his home approximately five to six months after the motor vehicle accident. He said that, post-accident, the trip would take him in the order of two hours, which he said was about 45-60 minutes longer than it had taken prior to the injury. His evidence at the examination for discovery was that his time to make the trip, prior to the motor vehicle accident, was in the order of 60-70 minutes.
[55]         At trial his testimony was different. He said that before the motor vehicle accident, he had been able to do the run and the en route workout in 40 minutes.
[56]         Quite predictably, the apparent discrepancy between these activities and the manner in which the plaintiff had represented his injuries and their effects was the basis of some real dispute at trial…
[68]         I am concerned with the veracity of the plaintiff’s claims regarding the extent, severity and effects of the injuries he suffered. The principal basis upon which the claim rests is his testimony, his description. There is not any notable objective evidence to support his assertions of the quite extensive nature of the consequences…
[70]         In the final analysis, I have very serious doubts as to the truth and reliability of the plaintiff’s description of the extent of the injuries and their impact upon him. My conclusion is that there was some soft tissue injury – bruising and discomfort – but it was fairly minor in that he was able to resume his running within a month. In view of that finding, while I accept there may have been some lingering residual discomfort, it would be of a fairly modest magnitude.
[71]         Similarly, as for his claims that his neck pain continued for 12 to 18 months, that the headaches persisted for six to eight months, and his complaint of low back pain, I find that he has not proven on a balance of probabilities that such injuries resulted in discomfort such as he describes. On the evidence, it was substantially less.

BC Supreme Court Confirms Mandatory Nature of Rule 68

Further to my previous posts on this topic reasons for judgement were released today by the BC Supreme Court, Vancouver Registry discussing the mandatory nature of Rule 68,
Although previous cases have addressed this point, today’s case is important because it is the first such case that I am aware of from a BC Supreme Court Judge (the previous cases were decisions of Masters).
In today’s case (Berenjian v. Primus) the Plaintiff sued for injuries as a  result of a BC Car Crash.  The claim was set for trial in December, 2009.  The Defendants set the matter for Jury Trial.  The Plaintiff then brought a m motion to move the case into Rule 68 which would have the effect, amongst others, of eliminating the possibility of trial by Jury.
The Plaintiff pointed to the fact that this case was worth less than $100,000 and argued that Rule 68 was mandatory.  The Defendants opposed the motion.  After hearing submissions Mr. Justice Punnett agreed with the Plaintiff and held as follows:
[22] Subrule (9) contemplates an action becoming an expedited action after it has been commenced…

[35] I do not agree that Rule 68 cannot be invoked once the pleadings are closed. If the rule is mandatory then the logic of Rule 68(7) is consistent. That is, the rule is a mandatory rule and, as such, no provision is required for the court to order that the rule does apply to a particular action. However, because it is mandatory, a provision was needed to remove actions from the rule.  The absence of the endorsement is simply an irregularity in actions which meet the criteria of Rule 68(2).

[36]         In my view Rule 68 places no time limit for it to be brought into play…

[45]         As noted above the principal of proportionality pervades Rule 68. Rule 68(13) requires that “[i]n considering any application under this rule, the court must consider what is reasonable in relation to the amount at issue in the action” (emphasis added).

[46]         As in Uribe, a jury trial is pending. Given the amount involved (and the defendants do not allege that the claim is worth an amount over $100,000), I am of the opinion that the matter should proceed under Rule 68. It is not reasonable that a claim in the range of $25,000 should proceed to a jury trial for the reasons noted earlier in Uribe. To do so would defeat the purpose of Rule 68.

[47]         Neither party has brought an application under Rule 68(7) for an order that Rule 68 does not apply. The plaintiff seeks an order transferring the proceeding to Rule 68. The defendants oppose that application. Given the mandatory nature of Rule 68, the question of whose obligation it is to bring the action formally under the rule raises an interesting issue that may well have relevance to any claim for costs arising from the late date of this application.

[48]         The plaintiff’s application is granted. There will be an order allowing for the the style of cause to be amended to read “Subject to Rule 68”. The trial currently set for December 7, 2009, shall proceed under Rule 68 without a jury. The plaintiff has tendered two expert reports pursuant to Rule 40A and the defendants one expert report. The parties have leave to call a total of three expert witnesses, namely  Dr. Wright, Dr. Mamacos and Dr. Leith.

This interpretation will likely remain good law under the New BC Supreme Court Rule 15 (the fast track rule which comes into force on July 1, 2010) as it also incorporates principles of proportionality, has the same mandatory tone of language and contemplates actions commenced outside of the fast track be brought into the fast track by filing :”a notice of fast track action” as contemplated by Rule 15-1(2).

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If you would like further information or require assistance, please get in touch.

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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