Tag: Gregory v. ICBC

BC Court of Appeal Discusses Mitigation of Damages in Injury Claims


Reasons for judgement were released this week by the BC Court of Appeal providing a useful summary of the law of mitigation of damages in the context of a personal injury lawsuit.
In this week’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  She was injured and sued for damages.  At trial her damages were assessed at just over $140,000 and then reduced by 10% for an alleged ‘failure to mitigate‘.  In short the trial judge held that the Plaintiff unreasonably failed to follow her doctor’s recommendation to have cortisone injections.
The Plaintiff appealed this deduction arguing that there was no evidence before the Court that these injections would have improved the Plaintiff’s symptoms.  The BC Court of Appeal agreed and overturned this deduction.  In doing so Madam Justice Garson provide the following short but useful discussion of the law of mitigation of damages in personal injury lawsuits:

[53] In Chiu v. Chiu, 2002 BCCA 618 at para. 57, this Court set out the test for failure to mitigate as follows:

[57]      The onus is on the defendant to prove that the plaintiff could have avoided all or a portion of his loss. In a personal injury case in which the plaintiff has not pursued a course of medical treatment recommended to him by doctors, the defendant must prove two things: (1) that the plaintiff acted unreasonably in eschewing the recommended treatment, and (2) the extent, if any, to which the plaintiff’s damages would have been reduced had he acted reasonably. These principles are found in Janiak v. Ippolito, [1985] 1 S.C.R. 146.

[56] I would describe the mitigation test as a subjective/objective test.  That is whether the reasonable patient, having all the information at hand that the plaintiff possessed, ought reasonably to have undergone the recommended treatment.  The second aspect of the test is “the extent, if any to which the plaintiff’s damages would have been reduced” by that treatment.  The Turner case, on which the trial judge relies, uses slightly different language than this Court’s judgment in Chiu: “there is some likelihood that he or she would have received substantial benefit from it …”.

[57] In this case the trial judge found as a fact that the cortisone shots were “not necessarily curative, they reduce the inflammation… Sometimes the relief is only temporary but sometimes the injections bring long term benefits”.  She did not find that the treatment would have reduced the symptoms.  In addition there is the fact that the plaintiff reasonably believed the diagnosis was a tear and that the injections would have no healing effect on a tear.

[58] Regardless of whether the trial judge erred in finding on the evidence that it was objectively reasonable for the plaintiff to undergo the injections, I conclude that she erred in her application of the correct test, as articulated in Chiu.  The physicians testified only that it was a reasonable treatment to try, and it might afford some relief.  In my view such an opinion does not meet the threshold for reducing an award as described in Chiu.

[59] I would accede to this ground of appeal and reverse the judge’s decision to reduce the award by 10%.

Future Care Claims: What Expert Evidence Is Needed?


Useful reasons for judgement were released this week by the BC Court of Appeal discussing the type of expert evidence necessary to prove damages for cost of future care in a BC injury claim.
In this week’s case (Gregory v. ICBC) the Plaintiff was injured in a 2006 collision. At trial the Plaintiff sought damages including an award of $123,000 for cost of future care.  In support of this claim the Plaintiff relied on the opinion of an occupational therapist.  This aspect of the claim was largely rejected with the Court awarding just over $8,000 for this head of damage.
The Plaintiff appealed arguing the trial judge erred in rejecting the evidence of the occupational therapist suggesting a medical doctors evidence was necessary for this aspect of the claim.   The BC Court of Appeal agreed in part and increased the assessment by $30,000.  In doing so the Court provided the following useful reasons addressing the type of expert evidence needed to advance a future care claim:

[38] Courts do accept testimony from a variety of health care professionals as to necessary and reasonable costs of future care: Jacobson v. Nike Canada Ltd. (1996), 19 B.C.L.R. (3d) 63, 133 D.L.R. (4th) 377 (S.C.) at para. 182; in which Levine J. (as she then was) said:

[182]    The test she enunciated does not, in my view, require that the evidence of the specific care that is required by the plaintiff be provided by a medical doctor. In Milina v. Bartsch, McLachlin J. accepted the evidence of a rehabilitation expert as to the type of care that should be provided.

See also: Aberdeen v. Zanatta, 2008 BCCA 420 at paras. 43-53, 63; Rizzolo v. Brett, 2010 BCCA 398 at paras. 72-83.

[39] I do not consider it necessary, in order for a plaintiff to successfully advance a future cost of care claim, that a physician testify to the medical necessity of each and every item of care that is claimed.  But there must be some evidentiary link drawn between the physician’s assessment of pain, disability, and recommended treatment and the care recommended by a qualified health care professional:  Aberdeen at paras. 43, 63…

[46] And, there was a consensus among the physicians that Ms. Gregory has difficulty lifting above shoulder height, difficulty with prolonged heavy or repetitive motion above shoulder level, and that in general she will continue to have persistent pain and weakness.

[47] The evidence of the physicians does therefore provide some evidentiary basis for the recommendations for assistance with heavy housework, and yard maintenance.  In my view the trial judge fell into error by failing to consider these claims on the basis only that, “there are no recommendations from the medical practitioners for housekeeping assistance, or home and yard maintenance … ”.

[48] Rather than remit this question to the trial judge, I am of the view that it is appropriate for this Court to substitute an appropriate award under this head of damages.

[49] That part of Ms. Percy’s recommendations in which she estimated assistance for heavy home and yard maintenance is set out above.  I would substitute an award of $30,000 over and above the amount already awarded under this head of damages.  This represents a reasonable assessment of the present value of the cost of some modest assistance with the housework, and yard maintenance, that Ms. Gregory could not perform herself in a reasonable manner, as a consequence of the impairment in her shoulder.

More on BC Personal Injury Claims and Radiologists Evidence


(Please note the topic discussed in this post should be reviewed keeping a subsequent October 2010 BC  Court of Appeal in mind)
Further to my previoius article on this topic, if you are advancing a BC Injury Claim and intend to rely on X-Rays, MRI’s or other diagnostic studies which demonstrate injury in support of your case it is vital that you serve the opposing party appropriate Notice under the Rules of Court.  Failure to give proper notice can keep not only the actual studies out of Court but also the opinions of radiologists discussing what these studies show.  Excluding such evidence can be fatal to a claim.  2 judgements were released today demonstrating this principle.
In the first case (Anderson v. Dwyer) the Plaintiff was injured in 2004 BC Car Crash.  At trial her lawyer attempted to put X-rays into evidence and to have a chiropractor give ‘evidence with respect to the contents of the x-rays‘.  The Defendant objected arguing that appropriate Notice of the proposed exhibit and the expert opinion was not given.  Mr. Justice Schultes agreed and in doing so gave the following reasons:





[3] The stated relevance of this evidence is that the x-rays taken after the accident will allegedly show some abnormality in some of the plaintiff’s vertebrae that could have been caused by the accident.  This, it is said, will rebut the defendant’s position that the plaintiff’s pain is largely the result of a degenerative condition rather than of the accident.

[4] The basis for the objection to Dr. Wooden’s evidence is that he is an expert witness and no notice of his evidence has been given as required by Rule 40A of the Rules of Court.  In addition, the defendant has not been given an opportunity to inspect the x-rays as required by Rule 40(13). ..

…While on the evidence by Dr. Wooden seeking to offer an opinion about the plaintiff’s injuries such as the inferences to be drawn from the observations in the x-rays or with respect to the cause or mechanism of the injury would be prohibited because of the plaintiff’s failure to comply with Rule 40A.


[16] As to the lack of compliance with Rule 40(13) the cases make it clear that in such circumstances the court has a discretion to admit the evidence (see, for example, Golden Capital Securities Ltd. v. Holmes, 2002 BCSC 516), but that in exercising its discretion it should take into account the absence of any proper explanation for the failure to disclose…

[17] In this case, the explanation is that counsel for the plaintiff thought it sufficient to simply notify the defendant of the existence of the x-rays and invite counsel to contact Dr. Wooden directly to inspect them.

[18] I do not think such a passive approach was sufficient.  The requirement in the Rule that the parties be “given the opportunity to inspect” an item connotes some positive action on the part of the party in possession of it.  At the very minimum, efforts should have been made by counsel for the plaintiff to facilitate the viewing of the x-rays.  It was not appropriate for the defendant to be invited to seek out the treating chiropractor himself even if consent by the plaintiff was said to be readily forthcoming.

[19] The very importance to her case ascribed by the plaintiff to the x-rays speaks to the necessity of her having obtained and disclosed copies of the exhibits in a proactive manner.

[20] There being no satisfactory explanation of the failure to comply with Rule 40(13) I decline to exercise my discretion to allow copies of the X-rays themselves to be admitted in evidence.  Because a witness may refresh his memory from anything that will assist him that process, even if that source itself is inadmissible (see R. v. Fliss, 2002 SCC 16 at para. 45) Dr. Wooden may refresh his memory by reviewing the x-rays should the need arise during his evidence.

_______________________________________________________________________________________________

In the second case released today, Gregory v. ICBC, the Plaintiff wished to put an expert report into evidence that gave an opinion based on the assumption that “there has been a partial tear of (the Plaintiff’s) subscapularis tendon.”  The doctor relied on a radiologist’s interpretation of an MRI as the source of this opinion.  The radiologists report was not put into evidence and the radiologist was not called as a witness.
The Defence lawyer argued that the opinion of the expert should be inadmissible in these circumstances.  The Court agreed.  In doing so Madam Justice Kloegman gave the following reasons:

[3] Dr. Chu’s second report discloses that his opinion is based on an assumption   that there has been a partial tear of the subscapularis tendon.  The defendant takes issue with that alleged fact.  The plaintiff has taken no steps to prove the truth of this assumption.  Originally, she did not intend to enter the radiologist reports interpreting the MRI scans.  Now counsel advises that she could lead them through Dr. Chu.  However, all this would do is show the source of Dr. Chu’s assumption.  It would not prove the truth of the radiologist’s interpretation, which in effect is just another expert opinion.

[4] Although the radiologist reports are expert opinions, the plaintiff has not served them pursuant to Rule 40, nor has she given notice of any intention to call the radiologists.  Therefore, it is obvious that she does not intend to prove as a fact this assumption about the partial tear.  Dr. Chu’s second report is based solely on this assumption of a partial tear.  There will not be any evidence proving the truth of this assumption, therefore, any opinions that are based on the partial tear as the primary assumption must be considered irrelevant and inadmissible.

These cases illustrate that if you wish to prove an injury through diagnostic imaging care should be taken to ensure that appropriate witnesses are available to get the evidence before the Court and further that appropriate notice is given to opposing counsel.

$60,000 Non-Pecuniary Damages for Chronic Post Traumatic Tendinopathy

(Please note the Trial Court’s decision regarding mitigation of damages in the below post was overturned on Appeal.  You can click here to read the BC Court of Appeal’s judgement)
Reasons for judgement were released today by the BC Supreme Court, New Westminster Registry, dealing with an assessment of damages for a shoulder injury, specifically a post traumatic tendinopathy.
In today’s case (Gregory v. ICBC) the Plaintiff was involved in a 2006 collision in White Rock, BC.  Her vehicle was struck while travelling through an intersection by the Defendant who failed to stop at a stop sign.  Fault was admitted by ICBC focusing the trial on the Plaintiff’s injuries.

  • Non-Pecuniary Damages Discussion

The Plaintiff suffered various soft tissue injuries to her neck and back that healed before trial.  The Plaintiff’s worst injury was to her left shoulder.   Dr. Day, an orthapeadic surgeon gave evidence that the Plaintiff suffered an “abnormality in the subscapularis tendon at the site of the superior border.  In addition there was inflammation in the subacromial bursa.”  Dr. Day also testified that the plaintiff had a “post traumatic tendinopathy causing some discomfort“.
The Plaintiff required surgery to “clean up” a “thick, tight subacromial bursa” because this caused irritation.
Following this the Plaintiff continued to have some shoulder pain which was aggravated by certain movements.  The Court accepted that this would likely continue into the future.  In assessing the non-pecuniary loss the Plaintiff suffered as a result of her injuries at $60,000 Madam Justice Kloegman found as follows:

[11] Due to the plethora of shoulder injury cases in the case law, it is important to distinguish the plaintiff’s shoulder injury from some of the shoulder injuries suffered by other plaintiffs in other cases. In the case at bar, the plaintiff does not have:

1.       neurological deficit;

2.       instability in her shoulder;

3.       frozen shoulder;

4.       restricted range of motion;

5.       dislocation or subluxation;

6.       arthritis; and

7.       muscle wasting.

[12] However, I accept that the plaintiff does have ongoing chronic pain in her shoulder which is exacerbated by certain movements. There was no suggestion that the plaintiff was a malingerer or was exaggerating her symptoms. Notwithstanding that pain is a subjective symptom, the medical professionals found some objective corroboration in the tendinopathy and bursitis. Unfortunately, the plaintiff will likely continue to suffer various degrees of pain in her left shoulder in the future. To this extent she is mildly restricted in her activities and potential for employment.

[13] In summary, I find that the accident caused injury to the plaintiff, primarily in her left shoulder joint, which injury is mildly impairing and likely of a permanent nature. This injury has caused and will continue to cause the plaintiff pain and suffering, and has caused and will continue to cause some loss in her ability to earn income both in the past and the present. ..

[21] As I have found that the plaintiff is likely permanently impaired, albeit to a minor degree, the cases of Thauli, Grant and John are more helpful. Reviewing these cases and keeping in mind the more severe injuries described in those cases, I am of the view that $60,000 is reasonable compensation for the plaintiff’s pain and suffering in this case.

  • Failure To Mitigate

This case is also worth reviewing for the Court’s discussion of the law of mitigation.  Here Madam Justice Kloegman found that the unreasonably failed to follow her doctors advice to have a cortisone injection in her shoulder.  The court found that there was a chance that this would have improved her symptoms.

The Plaintiff did not follow her doctor’s recommendation apparently because of “what she read on the internet” and discussions she had “with her claims adjuster and chiropractor“.  The court found that these were unreasonable explanations for not following the doctor’s advice and as a result reduced the Plaintiff’s damages by 10%.  The Courts discussion of mitigation can be found at paragraphs 34-35 of the reasons for judgement.

Contact

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.

“Work hard, be kind and enjoy the ride!”
Erik’s Philosophy

Disclaimer