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ICBC Claims, Soft Tissue Injuries and Credibility

Written by admin on . Posted in ICBC Back Injury (soft tissue) Cases, ICBC Chronic Pain Cases, ICBC Whiplash Cases, Uncategorized. 4 Comments on ICBC Claims, Soft Tissue Injuries and Credibility

Soft tissue injuries without objective signs are some of the most frequently litigated claims.  One of the reasons why is because credibility plays a vital role in these claims and ICBC often challenges the credibility of Plaintiff’s alleging such injuries.
Reasons for judgement were released on Friday by the BC Supreme Court, Vancouver Registry, dealing with just such a claim.  In Friday’s case (Tayler v. Loney) the Plaintiff was involved in a 2005 BC Car Crash.  Her injuries included soft tissue injury to her neck and back.  These injuries unfortunately continued to linger for many years.  By the time of trial the Plaintiff’s pain was ongoing.  ICBC’s response to this was that the Plaintiff was no longer injured and was simply ‘lying to the court’.
Mr. Justice Grauer rejected ICBC’s position and accepted that she indeed did suffer injuries in the car crash which continued to bother her to the time of trial.  Damages of $42,500 were awarded for the Plaintiff’s non-pecuniary loss (pain and suffering).  Since ICBC put the Plaintiff’s credibility squarely in issue the court had to address this head on.  In doing so the court engaged in a thoughtful discussion about credibility in ICBC injury claims where there is no objective sign of injury.  Mr. Justice Grauer summarized and applied this area of law as follows:

[65] While I have found that the plaintiff is in fact experiencing what she says she is experiencing, I also accept the weight of the medical opinion that there is no objective evidence of ongoing soft tissue injury.  In these circumstances, it is helpful to turn for guidance to the authorities to which counsel referred me, always remembering that each case turns on its own unique facts.

[66] In Butler v. Blaylock (7 October 1980), Vancouver Reg. No. B781505 (S.C.), McEachern C.J.S.C. (as he then was) remarked as follows:

I am not stating any new principle when I say that the Court should be exceedingly careful when there is little or no objective evidence of continuing injury and when complaints of pain persist for long periods extending beyond the normal or usual recovery.

An injured person is entitled to be fully and properly compensated for any injury or disability caused by the wrongdoer.  But no one can expect his fellow citizen or citizens to compensate him in the absence of convincing evidence – which could be just his own evidence if the surrounding circumstances are consistent – that his complaints of pain are true reflections of a continuing injury.

[67] Counsel for the defendant relied in particular on the judgment of Taylor J.A. for the Court of Appeal in Maslen v. Rubenstein (8 September 1993), Victoria Reg. No. V01071 (C.A.), where the court was concerned with:

… those post-traumatic phenomena – sometimes identified with and sometimes distinguished from conditions known as “idiopathic pain disorder”, “chronic (or chronic benign) pain syndrome”, “functional overlay” and “somatoform pain disorder” – which involve continued suffering in accident victims after their physical injuries have healed.

[68] At paras. 8-12, Taylor J.A. went on to describe the basic principles applicable to these “difficult cases”:

To meet the onus which lies on the plaintiff in the case of this sort, and thereby avoid the ‘ultimate risk of non-persuasion’, the plaintiff must, in my view, establish that his or her psychological problems have their cause in the defendant’s unlawful act, rather than in any desire on the plaintiff’s part for things such as care, sympathy, relaxation or compensation, and also that the plaintiff could not be expected to overcome them by his or her own inherent resources, or ‘will-power’.

If psychological problems exist, or continue, because the plaintiff for some reason wishes  to have them, or does not wish them to end, their existence or continuation must, in my view, be said to have a subjective, or internal, cause.  To show that the cause lies in an unlawful act of the defendant, rather than the plaintiff’s own choice, the plaintiff must negative that alternative.  The resolution of this issue will not involve considerations of mitigation, or lack of mitigation.  To hold otherwise, that is to say to place on the defendant the onus of proving that a plaintiff who suffers from a psychological problem had it within his or her own ability to overcome it, would be to require that the defendant, rather than the plaintiff, bear the onus of proof on the primary issue of causation, and would impose on defendants a heavy and unjustifiable burden.  If the court could not say whether the plaintiff really desired to be free of the psychological problem, the plaintiff would not, in my view, have established his or her case on the critical issue of causation.

Any question of mitigation, or failure to mitigate, arises only after causation has thus been established.

Where the court finds that psychological injury has been suffered as a result of unlawful conduct of the defendant which the plaintiff has not the ability to overcome by his or her own inherent resources, the court must then, if mitigation issues are raised, decide whether the defendant has established that by following advice which the plaintiff received or ought to have obtained, the plaintiff could have overcome the problem, or could in future overcome it….  Where appropriate remediable measures would resolve the problem, damages can, of course, be awarded only in respect of the period up to the date when, in the estimation of the fact-finder, the problem ought to have been resolved, or ought to be resolved.

Once the principles to be applied are recognized, the rest is a matter for the fact-finder to determine on the basis of the evidence in the case, and it is for this reason that I find little guidance in many of the decisions cited.

[69] Plaintiff’s counsel relied heavily on the judgment of Spencer J. In Netter v. Baas (14 February 1995), Vancouver Reg. No. B930557 (S.C.), where the learned judge commented as follows:

Over the ensuing 33 months, no doctors save one, has been able to find a satisfactory objective cause for [the plaintiff’s] continuing pain related to this accident.  All the doctors who filed reports agree that he suffered soft tissue injury and resulting pain, but none explains why the pain should have been so severe and lasted so long.  This is the classic case of the plaintiff without objective symptoms who claims an almost total disability from his former physical occupations….

Such cases invite skepticism on the part of the defendant who is asked to pay for such an extreme result.  But this is a plaintiff who claims a formerly very physical lifestyle in the outdoors.  Although he worked in a sawmill in town for the year preceding the accident, much of his life to age 37 had been spent outdoors as a driller-blaster, a prospector and part-time farmer.  His hobbies involve the outdoors too, camping, canoeing, hiking and fishing.  Some of the doctors who examined him remarked upon his strength and build.  Would such a person willingly abandon the lifestyle he had previously embraced for the sake of the chance of an exaggerated accident claim?  There are cases where plaintiffs have done that but generally there is evidence from which that can be determined.  No evidence was called to challenge the accuracy of this evidence about his previous lifestyle.

[70] Turning to the present case, there is, as I have noted, no doubt that the plaintiff suffered soft tissue injuries to her neck, shoulders, upper and lower back, causing pain, headaches and disability.  I have also found that although she genuinely continues to experience pain and disability, there is no objective evidence of continuing injury.  There is no muscle-wasting, atrophy or limitation of motion, and she has been observed to be capable of spontaneous movements inconsistent with continuing physical injury.

[71] What, then, is the explanation for the delay in the plaintiff’s recovery?  On the evidence before me, I conclude that the answer lies in a combination of factors, identified by both Dr. Yuzak and Dr. Teal, although in different ways.  Dr. Teal described it as a psychological predisposition to the effects of trauma, noting her five previous motor vehicle accidents, and her profession.  Dr. Yuzak referred to the three complicating factors of her five previous accidents, her status as a health practitioner, and an environment that was not conducive to healing.  I find that all of these have played a part, and explain why the plaintiff has not recovered as one might otherwise have expected.

[72] I do not consider that this psychological and circumstantial predisposition has a subjective, or internal, cause in the sense of being the plaintiff’s own choice, as discussed in the Maslencase.  Rather, it is the effect of the defendant’s unlawful conduct upon the plaintiff’s pre-existing state that has resulted in the circumstances in which the plaintiff now finds herself, subject to the issue of mitigation.  I do not accept that the stresses in the plaintiff’s life since the accident constitute a novus actus interveniens, as submitted by the defendant.  Those stresses are of the sort that many people experience, and but for her injuries, would not in my view have caused the plaintiff any loss.

[73] Accordingly, I find that the plaintiff has established that her ongoing state of experiencing pain and disability was caused by the defendant’s negligence.

The Law of "Adverse Inference" Exlpained in BC Brain Injury Case

Written by admin on . Posted in Civil Procedure, ICBC Brain Injury Cases, Uncategorized.

One of the most important decisions a personal injury lawyer needs to make when going to court is deciding which witnesses to call in support of the claim.  This is particularly true when it comes to deciding what medical experts will be called in support of an injury claim.
Typically a seriously injured plaintiff will have seen many medical practitioners (GP, specialists, physiotherapists etc.)  If you  fail to call some of these witnesses can that harm your case?  The answer is yes and is contained in the law of ‘adverse inference’.   The law of adverse inference means that the judge or jury are permitted to, in certain circumstances, presume that you failed to call a certain witness (such as your doctor) because that witness would not have helped your case.
Reasons for judgment were released yesterday by the BC Supreme Court, Nanaimo Registry, (Hodgins v. Street) explaining and applying this legal principle in a BC brain injury case.
In this case the Plaintiff was injured in a serious accident in 2004 in Courtenay, BC.   The Plaintiff suffered a moderate brain injury which was expected to have permanent consequences.  In awarding just over $650,000 in total damages for the Plaintiff’s losses Mr. Justice Kelleher summarized the Plaintiff’s injuries and their effect on her life as follows:

[81] In this case, the plaintiff has suffered constant headaches and continues to do so.

[82] Her emotional and other difficulties arising from the brain injury are permanent and affect many aspects of her life.

[83] I am persuaded that Ms. Hodgins’ pleasure in life has been significantly reduced.  Both the plaintiff’s cognitive and physical conditions limit what she can do outside the home.  Her ability to be a mother will be complicated by these injuries.  She will have a loss of opportunity of engaging with her children while they are growing up.  I accept, as well, Dr. Anton’s opinion that neurological recovery after a traumatic brain injury is usually maximal within two years and therefore further recovery cannot be expected.  I accept, as well, neurologist Dr. Donald Cameron’s opinion that she is “functionally disabled to a significant degree”.  Her fatigue, hypersomnilance and dizziness will be permanent.  She is more vulnerable than before to episodes of depression.

In reaching his judgement Mr. Justice Kellehar was asked to draw an adverse inference because the Plaintiff failed to call her GP of many years as a witness.  The judge did in fact draw this adverse inference and in doing so did a great job summarizing this area of the law as follows:

Adverse Inference

[51] The defendant argues that I should draw an adverse inference from the failure of the plaintiff to have Dr. Law, the plaintiff’s family doctor, provide a report or to call him as a witness.

[52] Dr. Law is the only physician (other than the chiropractor Dr. Kippel) who treated the plaintiff extensively before and after the accident.  A central issue in this case is the plaintiff’s pre-accident medical history and the extent to which the accident is the cause of the plaintiff’s difficulties today.

[53] Dr. Law’s clinical records were produced.  But they are, by the terms of a document agreement between the parties, simply records kept in the ordinary course of business.  They do not contain any opinion.

[54] The principle was stated in Wigmore on Evidence, (Chadbourn rev. 1979) vol. II at 192:

…The failure to bring before the Tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party.  These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure.  But the propriety of such an inference in general is not doubted.

[55] Sopinka and Lederman in The Law of Evidence in Canada, 2nd ed., (Toronto: Butterworths Canada, 1999), describe the principle at para. 6.321:

In civil cases, an unfavourable inference can be drawn when, in the absence of an explanation, a party litigant does not testify, or fails to provide affidavit evidence on an application, or fails to call a witness who would have knowledge of the facts and would be assumed to be willing to assist that party.  In the same vein, an adverse inference may be drawn against a party who does not call a material witness over whom he or she has exclusive control and does not explain it away.  Such failure amounts to an implied admission that the evidence of the absent witness would be contrary to the party’s case, or at least would not support it.

[emphasis added]

[56] There have been recent developments in the application of this principle in British Columbia.

[57] In Barker v. McQuahe (1964), 49 W.W.R. 685 (B.C.C.A.), the Court of Appeal stated an adverse inference may be drawn if a litigant fails to call a witness who might be expected to give supporting evidence.  Mr. Justice Davey stated at 689 that a plaintiff seeking damages for personal injuries “… ought to call all doctors who attended him in respect of any important aspect of the matters that are in dispute, or explain why he does not do so”.

[58] That approach was modified in Buksh v. Miles, 2008 BCCA 318, 83 B.C.L.R. (4th) 162, at para. 34:

[34]      Taking the admonition of Mr. Justice Davey to the extreme in today’s patchwork of medical services raises the likelihood of increased litigation costs attendant upon more medical reports from physicians or additional attendances of physicians at court, with little added to the trial process but time and expense, and nothing added to the knowledge of counsel.  Perhaps the idea that an adverse inference may be sought, on the authority of Barker, for the reason that every walk-in clinic physician was not called fits within the description of “punctilio” that is no longer to bind us, referred to by Mr. Justice Dickson in R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299, in a different context.

[59] Mr. Justice Macaulay considered this issue in Prato v. Insurance Corporation of British Columbia, 2003 BCSC 76, in circumstances similar to those before me.

[60] In that case, the defendant had access to the clinical records.  Mr. Justice Macaulay noted that in Barker, the plaintiff failed to call the specialist and the inference was that the specialist did not support the view of the general practitioner.  In Prato, the specialists were called but not the general practitioner.  His Lordship said at para. 26: “I am less concerned about the lack of supporting evidence from a general practitioner than I would be if the situation were reversed”.

[61] The defendant points to Djukic v. Hahn, 2006 BCSC 154, aff’d 2007 BCCA 203, 66 B.C.L.R. (4th) 314, where Josephson J. at para. 60 gave five reasons for declining to draw an adverse inference:

1.         Both parties have produced volumes of medical evidence from a number of doctors;

2.         The complete clinical records of these doctors were disclosed to the defence;

3.         These same records were expressly considered and subsumed in the opinions of doctors whose reports are before me;

4.         Having had disclosure of these records, it was open to the defence to interview and call these doctors as witnesses without risk of being blindsided;

5.         These were not doctors whom Mrs. Djukic consulted on a regular basis.

[62] As the plaintiff points out, the decisions in Prato, Djukic and Buksh are consistent with the initiative to streamline trials and make them less costly.

[63] However, there were two peculiarities in the Prato case that bear mentioning.  Of concern was the evidence or lack of evidence from two family doctors.  One of them, Dr. Leong, was not available to testify at trial.  Therefore, the records that were sought to be admitted, which contained opinion evidence, were not admitted.  In the circumstances, Mr. Justice Macaulay declined to infer that the doctor held views inconsistent with those of the specialist.

[64] The other physician was Dr. Hayes.  He had provided a medical report directly to an adjuster at ICBC.  (This was an action for temporary total disability benefits.)  Thus, the defendant had the opinion of Dr. Hayes but declined to call Dr. Hayes.

[65] In all the circumstances of this case, I infer that the plaintiff did not call Dr. Law because he would not have provided evidence helpful to the plaintiff’s position on these points:

1.         The plaintiff’s medical condition, both physical and psychological, at the time of the accident.

2.         The medical cause for the plaintiff’s fatigue before and after the accident.

3.         How the plaintiff progressed following the accident with the effects of the brain injury and the other soft tissue injuries.

More on Rule 66, Rule 37B, ICBC Claims and Costs

Written by admin on . Posted in Civil Procedure, Uncategorized. 42 Comments on More on Rule 66, Rule 37B, ICBC Claims and Costs

Reasons for judgment were released today by the BC Supreme Court dealing with 2 issues of interest to me, Costs consequences under Rule 66 and Rule 37B.
In today’s case (Schnare v. Roberts) the Plaintiff was injured in a motor vehicle collision.  The Plaintiff sued for damages under Rule 66.  The Plaintiff made a formal offer of settlement and ICBC did not accept it.  The Plaintiff proceeded to trial and the verdict more than doubled the Plaintiff’s settlement offer.  (click here to read my previous post regarding the trial judgment).
Today’s judgment dealt with the costs consequences.  ICBC argued that the Plaintiff should be limited to costs under Rule 66 (which are capped at an amount less than regular Tariff costs under the BC Supreme Court Rules) because the lawsuit was brought initially under Rule 66.  Madam Justice Adair disagreed with ICBC’s submission and noted that since the trial went beyond the Rule 66 2 day limit that constituted ‘special circumstances’ which permitted the court to order costs outside of the Rule 66 costs.  Madam Justice Adair reasoned as follows:

[13]        Sub-rules (29) and (29.1) of Rule 66 provide (italics added):

(29)      Unless the court orders otherwise or the parties consent, and subject to Rule 57 (10), the amount of costs, exclusive of disbursements, to which a party is entitled is as follows:

(a)   if the time spent on the hearing of the trial is one day or less, $5 000;

(b)   if the time spent on the hearing of the trial is more than one day, $6 600.

(29.1)   In exercising its discretion under subrule (29), the court may consider a settlement offer delivered in accordance with Rule 37 or 37A whether or not other special circumstances exist.

Rules 37 and 37A have been repealed and replaced with Rule 37B.

[14]        In my view, Ms. Schnare’s case was not the type of case contemplated by Rule 66.  By October 2008, the parties themselves realized that two days would not be sufficient for trial.  Even a more generous estimate of three days turned out to be insufficient to deal with the evidence on the relevant issues in the case and with submissions (including submissions on the admissibility of documentary evidence).  Although court adjourned somewhat early in the afternoon on January 28, 2009, it sat late on January 29, 2009, to ensure that a witness’ evidence could be completed.  I did not consider counsel were inefficient in their use of time.  I am satisfied that the length of the trial itself constitutes “special circumstances” in this case.  See Kailey v. Kellner, 2008 BCSC 224, 56 C.P.C. (6th) 40, where, in comparable circumstances, Mr. Justice Parrett also found the length the trial constituted “special circumstances” justifying a departure from the fixed costs under Rule 66(29), and awarded costs on Scale B.

[15]        In my opinion, the appropriate order respecting costs (before considering matters under Rule 37B) was and is that the plaintiff should recover her costs on Scale B of Appendix B.

The second issue worth noting were the costs consequences under Rule 37B.  The Plaintiff argued that they should be awarded double costs from the date of their formal settlement offer onward.    Madam Justice agreed and engaged in the below analysis and in doing so made some critical comments about an expert physician (Dr. McPherson) who ‘was very closely tied to ICBC…for over a decade‘ in the defence of personal injury claims:

19]        Should the plaintiff’s January 26, 2009 offer have been accepted, and the costs of the trial avoided?  Analysis of this question is not to be based on hindsight once the final result is known, as noted in Bailey v. Jang, 2008 BCSC 1372, 63 C.P.C. (6th) 291, at para. 24.  Nevertheless, in my view, the defendants should have given that offer much more serious consideration when looking at the risks of going to trial. 

[20]        The defendants’ defence to Ms. Schnare’s claims for substantial damages rested primarily on the shoulders of their expert, Dr. McPherson, the only defence witness.  However, there were serious risks in that strategy.  Dr. McPherson was very closely tied to ICBC, and had been for over a decade.  This was not a secret, and had been the subject of media reports, which were used to cross-examine Dr. McPherson.  As counsel for the defendants must have appreciated, these ties made an issue of Dr. McPherson’s impartiality and credibility, and impaired his value as a expert.  Dr. McPherson’s evidence, unlike that of Dr. Van Rijn and Mr. McLean, did nothing to explain Ms. Schnare’s continuing symptoms and physical difficulties, and provided little assistance to the court.  His rejection of the possibility that there could be movement of Ms. Schnare’s sacroiliac joints led inevitably to his conclusion that her complaints could not be accident-related, and to speculate that Ms. Schnare possibly had a condition that Dr. McPherson conceded was extremely rare.  As I noted in my reasons, Dr. McPherson was unhelpfully dismissive of opinions other than his own.  In my view, the defendants’ reliance on Dr. McPherson’s opinions to defend against Ms. Schnare’s claims was unreasonable in face of the plaintiff’s eve-of-trial offer to settle.  The offer represented a very substantial discount from the amounts Ms. Schnare sought at trial.  A more reasonable assessment of the potential risk that Dr. McPherson’s opinions would be unpersuasive (as I found them) should have led the defendants to accept Ms. Schnare’s last offer, in which case the costs of the trial would have been avoided.  This factor supports the plaintiff.

[21]        The final damages awarded to Ms. Schnare were more than twice the amount of Ms. Schnare’s offer.  This factor also supports the plaintiff.

[22]        With respect to the relative financial circumstances of the parties, I consider this factor neutral.

[23]        Taking into account the underlying legislative policy behind Rule 37B, that Ms. Schnare’s offer represented a very substantial discount off her damage claims presented at trial and if accepted would have avoided the costs of the trial, and that the amount awarded was significantly more than the amount of Ms. Schnare’s offer, in my view it is appropriate to award the plaintiff double costs for steps taken after January 26, 2009.